Volume 151 — California Reports

<p>The facts are stated in the opinion of the court.</p>

<p>Supreme Court—Hearing op Appeal—Pro Tempore Appointment in Place op Justice Hnable to Act—Rehearing Granted by Vote op Such Justice—-Law op Case.—Where a justice of the supreme court was unable by reason of illness to act upon the hearing of an appeal, and a justice of the district court of appeal, under the authority conferred by the amendment of 1904 to section 4 of article VI of the constitution, was selected to act pro tempore in his place, and took part in the decision of the appeal, and thereafter a petition for a rehearing was filed, upon the consideration of which it was decided by the justices of the supreme court, all being present, that the justice of that court whose place had been so temporarily filled should participate in the determination of the petition, and thereupon the petition was granted by four of the justices, including the one whose place had been so filled, the ruling of the court deciding that such justice of the supreme court, and not the justice of the district court of appeal, was the proper person to participate in the determination of the petition for a rehearing became the law of the case, on a motion to set aside the order granting the rehearing, and its correctness will not be inquired into.</p> <p>MOTION to set aside an order granting a rehearing and to issue a remittitur in accordance with the judgment of the court in Bank, as heretofore made.</p>

<p>. The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate to the Superior Court of the City and County of San Francisco and to Frank H. Kerrigan, the Judge thereof.</p> <p>The facts are stated in the opinion of the court.</p> <p>Walter H. Robinson, and Robert T. Devlin, for Petitioner.</p>

<p>Water and Water-Bights — Public Use outside of City — Water Obtained from Lands within City.—Under the provisions of article XIV of section 1 of the constitution, and of sections 1, 8, and 10 of the act of March 12, 1885, (Stats. 1885, p. 95,) where a corporation is organized to obtain water from lands situated within a city, for sale and distribution to lands situated outside of the municipality, the use to which the water so obtained is devoted is a public use, and its sale and distribution is subject to public control as in the act provided.</p> <p>Id.—Obligation to Furnish Water.—Under sections 8 and 10 of that act, corporations or persons engaged in furnishing water to the inhabitants of any county which have appropriated water to that use (other than to the inhabitants of a city, or town, or city and county), are required to distribute such water at the rates fixed by the board of supervisors of the county, or as fixed by the corporation or person, and, upon tender of such rates and demand therefor by any inhabitant who is entitled to water from such system, the corporation or person is under an obligation and duty to supply such inhabitant with water, to the extent of his reasonable share of the available supply belonging to the system.</p> <p>Id.—Act of March 12, 1885—Place of Appropriation—Distribution outside of City.—The provision of section 10 of that act, declaring that “ every person, company, association and corporation, having " in any county in the state (other than in any city, city and county or town therein) appropriated waters for sale, rental or distribution, to the inhabitants of such county,” shall be obliged, upon tender and demand, to so distribute the water, should be construed so as to make it harmonize with the title and purposes of the act, which are to regulate and control the sale, rental, and distribution of appropriated water in this state, other than in any city, city and county, or town therein. So construed, the place of the ‘ ‘ appropriation ’ ’ is the place where the water is used, and not necessarily the place where the source of supply may be situated. Consequently, if the place of distribution and use is outside of any city, town, or city and county, the provisions of sections 8 and 10 apply to the system, although the supply of water may be obtained from a natural source situated within the limits of some city.</p> <p>Id.—Action to Enforce Water Service—Extent of Belief—Injunction—Mandamus—Misjoinder of Causes of Action.—In an action to enjoin the defendants, who were under the obligation of supplying water to the inhabitants of the locality in which the plaintiff’s premises were situated, from cutting off the water flowing in a certain pipe to one of his lots, and to compel them to furnish water to a certain other lot belonging to him, the superior court has jurisdiction to give any relief warranted by the facts alleged and within the scope of the prayer of the complaint, whether that relief be equitable or legal, or relief appropriate only in a special proceeding. And where the facts alleged in the complaint are sufficient to justify relief by injunction as to one lot, with additional relief by writ of mandate as to the other, and the proper parties defendant are before the court for both kinds of relief, the objection that there is a misjoinder of causes of action, even if well taken, cannot be raised by a demurrer upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action. For the purposes of the demurrer that objection is waived.</p> <p>Id.—Water Obtained from Land in Pueblo — Spanish Law—Los Angeles—Dedication for Use of Inhabitants.-—The mere fact that a corporation organized under the laws of this state for the purpose of distributing water for public use to a locality outside of the city of Los Angeles, obtained its water from lands within the city, or even that it was taken from the Los Angeles Eiver, which by the special dedication created by the Spanish law for the founding of pueblos was set apart for the exclusive use of the city of Los Angeles, would not excuse such corporation, or another private corporation as its successor, from furnishing water to the inhabitants of such locality, so long as they were able to obtain the water from that source for such use.</p> <p>Id.—Waters of Los Angeles Eiver—-“Fuentes”—Sale by Pueblo. —If the water so obtained from the land situated within the city of Los Angeles was not a part of or tributary to the Los Angeles Eiver, and if it was impressed with a trust for the exclusive use of the inhabitants of the city at all, it is because it comes within the description of “fuentes”—springs of water appropriated to the supply of a town,—which were by the Spanish law considered as communal property. This class of pueblo property, unlike the rivers, was subject to sale to private persons by the pueblo.</p> <p>Id.—Private Ownership of Communal Waters—Bepurchase by City. —Allegations in the complaint in such action that the land within the city from which the water was obtained was sold by the city of Los Angeles nearly fifty years ago, without reservation of any water or water-right pertaining thereto, and that some twenty years ago, and for several years thereafter, the water thereon, or a part of it, was devoted to public use outside the city, and that the city subsequently reacquired the land, and the water system connected therewith, from a water company which then owned it, and thereafter allowed the waters thereof to go to waste, sufficiently shows, prima facie at least, that the water upon the land had been reduced to private ownership and was not subject to the public use as part of the public waters of the city prior to and at the time of its repurchase of the land and water system. Its purchase by the city from such company did not free the property conveyed from the burden put upon it by virtue of the appropriation of the water to public use, to which it was then subject in the hands of that company. If it is claimed that such water is tributary to the Los Angeles Eiver, or necessary to its support as a part of its underground supply, or that it has otherwise become free from the burden to which it was previously subject, such facts must be shown in' defense.</p> <p>Id.—Judicial Notice of Site -of Los Angeles. — The court takes judicial notice that the pueblo of Los Angeles was located near the river of that name, and its waters were dedicated to the public use for the inhabitants of that pueblo.</p> <p>Id.—Eight of Los Angeles to Acquire Water—Purchase of Water System"—Necessity of Purchase.'—In the exercise of the power conferred on the city of Los Angeles by its charter (Stats. 1889, p. 455, see. 2, snbds. 7, 15), to acquire water and water-rights, within or without the city, for the use of its inhabitants, the city has the right to buy from any corporation or person engaged in supplying water for public use outside the city any surplus water which such corporation or person might possess, and, if necessary, in order to obtain such surplus, the city might purchase the entire water supply of such person or corporation, and the water-plant or system used in connection with it, so that, after operating the system and supplying the persons entitled to use the water, it could devote the surplus to the use of the inhabitants of the city. And on a demurrer to the complaint, in an action against the city as the successor of such a corporation, to enforce its obligations to furnish such water outside of the limits of the city, it will be presumed that the acquirement of such water plant by the city, and the operation of.the system, were necessary.</p> <p>Id.—Non-User of Water by City after Purchase—Duty to Furnish Water after Demand.—The city of Los Angeles, after it had acquired title to and control of the entire property and water system of a corporation engaged in supplying water derived from lands within the city to a locality outside of the city, will not be allowed, in the absence of facts or circumstances which might absolve it from the duty to continue the water service, to discontinue the operation of the system, cease to furnish the water, or any water, to the persons theretofore receiving and entitled to receive it from said system, retain title, possesssion, control, and management of all the property composing the system, and allow the water previously devoted to the public use to run to waste. If a proper demand, by a person entitled, is made upon it for the continuance of the service, it must either comply or permit the use of the property and plant in previous use and necessary for the service by the demandant, or by the persons beneficially interested, to the end that he or they may continue to devote the property to the public service to which it is dedicated.</p> <p>Jj>.—Action to Enforce Service—Defenses—Pleading.:—In an action against the city to compel it to continue such water service, if such permission has been given, or if it is willing to make an effectual tender of such use in court, or if the service has become impossible from failure of the supply, or if a part only of the property is required for the administration of the service and the necessary part has been offered, or if any other lawful reason exists to excuse 'it from continuing the performance of the water service, the city must allege such facts in its answer by way of defense.</p>

<p>"Vendor and Vendee—Specific Performance by Vendor—Foreclosure of Chattel Mortgage Securing Purchase Price—Form of Judgment—Time to Perform before Sale.—In an action by a vendor in an executory contract for the sale of land, under which the vendee went into and. continues in possession, to specifically enforce the contract by requiring him to pay the balance of the agreed purchase price, the foreclosure of a chattel mortgage given by the vendee as a part of the transaction to secure the payment of a promissory note evidencing the indebtedness, and the application of the proceeds of sale to the payment thereof, may be had; and a judgment which provides for such foreclosure, and the application of the proceeds of sale of the mortgaged personal property to the payment of the indebtedness, before recourse is had to the vendee’s interest, in the land, or to other property owned by him, is proper, and such " judgment need not allow the defendants a reasonable time before sale within which to perform their agreement and avoid a sale.</p> <p>Id.—Injustice of Specific Performance When not Shown.—In such action specific performance will not be denied on the ground that it would produce hardship or injustice, where the complaint alleged and the court found upon sufficient evidence, that the defendants received an adequate consideration for the contract; that, as to-them, it was just and reasonable, that their assent was not obtained by misrepresentation, concealment, or unfair practice of any party thereto, or by any promise of such party which has not been substantially fulfilled, nor given under the influence of mistake, misapprehension, or surprise, and that the plaintiff has fully and fairly performed all of the conditions of said contract upon his part.</p> <p>Id.—Payments on Account Pendente Lite.-—In the absence of an-agreement to that effect, the acceptance by the vendor, after the-action of specific performance had been commenced, of partial payments on account of the purchase price, did not operate as a. waiver of his cause of action as to the balance still due.</p> <p>Id.—Decision and Judgment—Oral Statement of Judge.—The correctness of a decision and judgment cannot be made dependent upon-oral statements made by the court, at the conclusion of the trial, as to his intention to include certain provisions therein which wereafterwards omitted.</p> <p>Id.—Attorneys’ Pees, When Allowable.—-The allowance of attorneys’' fees to the plaintiff in such action is proper, when authorized by express provisions in the contract and in the chattel mortgage.</p>

<p>Execution Sale—Inadequacy of Price—Setting Aside Sale fob Unfairness.—Mere inadequacy of the purchase price, standing alone, unaccompanied by any unfairness or other inequitable incident, will not authorize the vacating of an execution sale. But such inadequacy is a circumstance of greater or less weight to be considered in connection with other circumstances impeaching the fairness of the sale as a cause for vacating it, and where the inadequacy is palpable and great, very slight additional evidence of unfairness or irregularity is sufficient to cause the sale to be vacated.</p> <p>Id.—Fraud of Execution Purchaser.—Where, in addition to gross inadequacy of price, the execution purchaser has been guilty of any unfairness, or has taken any undue advantage resulting in such gross inadequacy and consequent injury to the execution debtor, he will -be deemed guilty of fraud warranting the interposition of a court of equity in favor of the execution debtor, who is himself without fault.</p> <p>Id.—Sale of Corporate Stock—Purchaser Knowing of Inadequacy of Price.—An execution sale of corporate stock, of the market value of two thousand dollars, for the sum of twenty-six dollars and a half, is grossly inadequate. Such sale will be set aside at the instance of a solvent judgment debtor who had no actual knowledge of the execution levy and of the proposed sale, and whose ignorance was satisfactorily excused by reason of the manner in which the levy was made and the notices of sale given, and who was not guilty of laches, where it appears that the judgment creditor was himself the purchaser at the sale, and knew the value of. the property sold, and took advantage of the absence of the judgment debtor and other bidders at the sale, to purchase the property for what he knew to be a merely nominal consideration. And this result will follow, although the execution levy and the notices of sale were had and given in accordance with the letter of the law. Such unfairness and undue advantage constituted constructive fraud.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Action against Physician fob Malpractice—Evidence of Physician Subsequently Employed—General Objection to Question—Motion to Strike Out.—In an action against a physician to recover damages for malpractice, which the complaint alleged was solely due to the defendant’s negligence in treating the plaintiff while he was his attending physician, a physician who was subsequently called to attend the plaintiff, after the defendant had ceased attending him by reason of plaintiff’s refusal to accept further services from him, and who made only one call on the plaintiff, cannot be questioned as to his reasons for having made only one call. And if in reply to such questions, which were properly objected and excepted to, the witness testifies in effect that the defendant made statements to him calculated to dissuade him from attending the plaintiff, the evidence thus elicited will be deemed prejudicial to the defendant, and the error in admitting it may be taken advantage of without a motion to strike out. And the error will not be cured by the subsequent testimony of the defendant as to the same conversation, which materially contradicted the testimony given by such witness.</p> <p>Id.—Question Objectionable in Toto.-—If a question is objectionable from every standpoint, and on its face there appears no purpose whatever for which the evidence asked could be admissible, a general objection of irrelevancy, incompetency, and immateriality is sufficient.</p> <p>Id.—Motion to Strike Out Answer Unnecessary When Question Is Objectionable in Toto.—Where it is apparent from a question itself that the response thereto will, upon any theory of the casé, be inadmissible, a motion to strike out the answer is not essential to preserve the right of the objector to complain. It is sufficient . to object to the proposed evidence, and except to the ruling admitting the same.</p> <p>Id.—Conversation with Defendant—Question not Suggesting Answer—Motion to Strike Out Necessary—Deposition.—Where a further question was asked of such witness as to the substance of a subsequent conversation had with the defendant concerning the plaintiff, to which the witness answered that the defendant had then thanked him for refraining to treat the plaintiff, such evidence was improper and prejudicial to the defendant. It was not error, however, for the court to overrule a general objection to the question, on the ground that it was irrelevant, immaterial, and incompetent, for it was not apparent from the question itself that the response would be inadmissible. The defendant, to have availed himself of the error in the admission of the testimony, should have moved to have it stricken out. And this rule is applicable, although the question and answer were embodied in the deposition of the witness.</p> <p>Id.—Certificate to Deposition—Sufficiency of.—The precise form of the certificate to a deposition, to be made by the officer taking the same, is nowhere prescribed by our law, and any certificate showing substantial compliance with the statutory provisions as to the mode .of taking and certifying is sufficient. A certificate that “said deposition, and the testimony given by said witness was reduced to writing by me, and, when completed, was by me carefully read to said witness, and being by him corrected and was by him subscribed in my presence,” is a sufficient compliance with section 2032 of the Code of Civil Procedure, providing that the deposition, when completed, “must be carefully read to the witness and corrected by him in any particular, if desired.”</p>

<p>Findings—Construction—Judgment.—Findings are to be read and considered together, and, if possible, are to be reconciled so as to prevent any conflict on material points; and unless the conflict is clear and the findings incapable of being harmoniously construed, a judgment will not be reversed on the ground of a conflict in the findings.</p> <p>Id.—Partnership Accounting.—In an action for an accounting of partnership affairs the finding reviewed and held not conflicting, and to sustain a judgment in favor of the plaintiff for an accounting as to the partnership real and personal property.</p> <p>Id.—-Conveyance by One Partner to Another—Tender oe Consideration.—Where conveyances are made of partnership property by one partner to the other, solely for the better management of the partnership affairs and for partnership purposes, the partner making the conveyances is not required, as a condition precedent to his right to maintain an action for an accounting, to restore or offer to restore whatever of value he has received for the conveyances.</p>

<p>PETITION for a Supersedeas, pending an appeal from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Samuel M. Shortridge," and W. G. Sharpstein, for Appellant.</p> <p>P. A. Bergerot, Edward Lander, and S. A. Riley, for. Respondents.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles J. Hasman, and Alexander & Church, for Appellant.</p>

<p>W ater-Rights—Appropriation—Pleading—Deraignment op Title.— In an action by an appropriator of the waters of a natural stream to determine the respective rights of himself and the other parties to the action to the use of such waters, it is not necessary for the complaint to allege the historical deraignment o"f the plaintiff's title and the various methods of its use of the waters. Only the ultimate facts as they existed at the time of the commencement of the action need be alleged.</p> <p>In.—Ditch on Government Lands.—The rights of a prior appropriator of water by means of a ditch constructed over vacant government lands are superior to the rights of one who subsequently appropriates such water, or to the riparian rights of one who subsequently becomes the owner of the land.</p> <p>Id.—Diversion through Natural Channel.—-An appropriator of the waters of a natural main stream has the right to conduct such waters to a point on a lower branch of the stream, and there permit it to flow down the natural channel of the branch to its point "of diversion on such branch. And where it appears from the evidence that more water was so turned into the branch than was taken out at such point of diversion, arid that this was done in order to preserve the water for use at that point, as against other lower owners and appropriators, it cannot be said that the diversion was a mere appropriation of the natural waters flowing down the branch.</p> <p>Id.—Riparian Owner — Use on Non-Riparian Lands.—A riparian owner, as such, is not entitled to divert the waters of a natural stream from his riparian lands and sell and dispose of it for use on non-riparian lands.</p> <p>Id.—Allegation oe Riparian Rights.—In an action to determine the rights to the waters of a natural stream, a party resting his right •to a portion of the waters upon his riparian ownership must allege the amount of his irrigable riparian lands and the amount of water reasonably necessary for his use upon such lands.</p>

<p>The facts are stated in the opinion of the court."</p> <p>S. D. Wood, J. C. Campbell, and F. W. Street, for Appellant.</p>

<p>Miner’s Lien—Foreclosure—Owner not Made Party—Judgment.— The interest of an owner in a mining claim, who is not made a party in an action to foreclose miners’ liens thereon, is not affected by the judgment in such action or by a sale had thereunder.</p> <p>Id,—Dependant in Whose Favor Judgment Is Rendered.—The interest of an owner in a mining claim, .who is made a party defendant in an action to foreclose miners’ liens thereon, but in whose favor judgment was rendered, is not affected by a judgment of foreclosure rendered against other defendants.</p> <p>Id.—Grantee under Unrecorded Deed—Bona Fide Purchaser—Lienors Having Knowledge of Deed.—Where the claimants of miners’ liens brought suit for the foreclosure thereof with full knowledge that one of the defendants, in whose favor judgment was rendered, was a prior grantee of the property sought to be foreclosed under an unrecorded deed, neither they nor a purchaser of the property at the execution sale in their behalf are bona fide purchasers for value as against such grantee.</p> <p>Corporation-—Sale of Property to Stockholder.—Section 309 of the Civil Code does not prohibit the sale by a corporation, for an adequate consideration, of property owned by it, and such sale may be to a stockholder as well as to a third person.</p> <p>Quieting Title—Evidence.—In an action to quiet title, alleged error in the admission of a certain judgment-roll in evidence will not be considered if the roll is not incorporated in the record.</p> <p>Id.—Action by Holder of Equitable Title.—An action to quiet title cannot be maintained by the owner of an equitable title against the owner of the legal title. And, similarly, in such action by the . owner of the legal title, where the defense consists merely of a denial of plaintiff’s ownership and the assertion of title in defend- . ant, such defense is not established by proof that the plaintiff is the owner of the legal title, subject to an equity in favor of ' defendant.</p> <p>Id.—Equitable Defenses against Legal Title—Findings.—In such an action by the owner of the legal title, where equitable defenses : are interposed by the defendants, in order to sustain a judgment in their favor such defenses must be the subject of favorable findings by the court.</p> <p>Findings—-Immaterial Issues.—If findings actually made which are sufficient to support the judgment are sustained by the evidence, the failure to find upon additional issues which could not affect the result is immaterial.</p> <p>Appeal—New Triad—Obder Reversed in Part.—On an appeal from an order denying a new trial, in an action to quiet title to several pieces of property with respect to which the issues are entirely separate, and as to which the new trial was properly denied as to some and erroneously as to others, the order should be reversed and a new trial granted only so far as may be necessary to correct the error in the order.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William E. Colby, and Chickering & Gregory, for Appellants.</p> <p>G. G. Goucher, Newman Jones, and J. S. Larew, for Respondents.</p>

<p>Water-Eights—Effect of Prior Decrees.—In an action commenced in the year 1900, involving the respective rights of the plaintiff and the defendants to the waters of the Susan Eiver, in Lassen County, held, that two certain prior decrees rendered by the superior court, in the years 1893 and 1899, in actions in which the present parties were joined, were determinative of their present rights, and that under such decrees the defendants had the right, during the period from June 20th to August 1st of each year, to exclude, if they saw fit, the waters of the Susan Eiver from entering the so-called Big Slough and thence passing down it to the plaintiff’s land through the so-called Hartson Slough.</p> <p>Id.—Evidence as to Interpretation oe Decree Inadmissible.—In such action, evidence as to what the parties to th$ first decree, which was entered in pursuance of a stipulation, understood its scope to be is inadmissible, as the decree itself determined that matter. Nor was any custom existing in the locality or adopted by the parties prior to the decree respecting the use of such waters during said periods of any moment.</p> <p>Id.—Prescriptive Bight—Intermediate Decrees.—In the present action the trial court did not err in refusing to allow the plaintiff to prove that he had acquired a prescriptive right as against the defendants to have the waters of said Susan Biver flow down through the Big Slough, and thence to the Hartson Slough, during the period from the entry of the first decree in 1893 and the entry of the second decree in 1899, where it appears that in the action resulting in the decree of 1899 the plaintiff had set up the same prescriptive right, and that it had been determined against him 'by that decree.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Cruz County denying a motion for a change of the place of trial. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the City Clerk of the City of Redondo Beach.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Buck & Middlecoff, and Thomas S. Louttit, for Appellant.</p>

<p>Taxation—Void Description of Property—Injunction to Restrain Deed to State—Payment of Tax as Condition to Injunction.— In an action for an injunction to restrain county officers from executing a deed to the state for unpaid taxes based upon an assessment which was void for insufficiency of description of the land assessed, where the complaint offers to pay the amount of taxes equitably due, and -the amount of taxes, the value of the property, the tax-rate, and the amount due had all been fixed by the proper fiscal officers, the court should by its decree fix the amount of the tax due on the land, and order its payment as a condition to the granting of the injunction, and not decree a reassessment 'of the property. (San Diego Beatty Co. v. Cornell, 150 Cal. 637, affirmed.)</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. E. S. Torrence, Judge.</p> <p>The facts are stated in the opinion of the court, and in the opinion in San Diego Realty Company v. Cornell, 150 Cal. 637.</p>

<p>Taxation—Void Description op Property—Injunction to Restrain Deed to State—Payment op Tax as Condition to Injunction.— San Diego Realty Co. v. A. F. Cornell, ante, p. 197, affirmed, and judgments ordered modified in accordance therewith.</p>

<p>Taxation—Void Description op Property—Injunction to Restrain Deed to State—Payment op Tax as Condition to Injunction.— In an action for an injunction to restrain county officers from executing a deed to the state for unpaid taxes based upon an assessment which was void for insufficiency of description of the land assessed, the complaint, in order to warrant the granting of the injunction, must tender payment of the taxes justly due.</p>

<p>Taxation—Void Description op Property—Injunction to Restrain Deed to State—Payment op Tax as Condition to Injunction.— In an action for an injunction to restrain county officers from executing a deed to the state for unpaid taxes based upon an assessment which was void for insufficiency of description of the land assessed, the complaint, in order to warrant the granting of the injunction, must tender payment of the taxes justly due.</p>

<p>Criminal Law—Murder—Insanity—Evidence.—In a prosecution for murder, where the evidence as to the insanity of the defendant is substantially conflicting, the finding of the jury on that defense is conclusive on appeal.</p> <p>Id.—Deposition Taken on Preliminary Examination — Constitutional Law.—Subdivision 3 of section 686 of the Penal Code, in so far as it permits testimony received on the preliminary examination of the defendant before a committing magistrate, and taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, when authenticated and filed in the manner prescribed by section 869 of that code, to be read in evidence upon its being satisfactorily shown that the witness is dead or insane or cannot with due diligence be found within the state, is not in violation of section 13 of article I of the state constitution. That provision of the constitution does not apply to testimony given at the judicial proceeding known as a preliminary examination, but refers only to an ordinary extra-judicial deposition taken, as it is called, de bene esse.</p> <p>Id.—Presumption op Regularity on Appeal.—Where there is nothing in the record on appeal to show that the transcript and proceedings before the magistrate were not properly authenticated or certified and filed as required by section 869 of the Penal Code, or that it was not a true statement of the testimony and proceedings taken and had on the preliminary examination of the defendant, all these things must be assumed on appeal in the absence of specific objection in these regards in the trial court.</p> <p>Id.—Form op Deposition—Specific Objection to Admission in Evidence—Waiver op Objection.—While it is essential to the admissibility on the trial of the deposition of a witness taken at the preliminary examination that it should be taken down by question and answer, as required by section 686 of the Penal Code, yet where it appears from the deposition itself that the testimony is in narrative form, an objection to its admission on that ground must be specific, otherwise such objection will be deemed to have been waived. A mere general objection that the deposition is immaterial, irrelevant, and incompetent, and a motion to strike it out on such general grounds is insufficient.</p> <p>Id.—Defendant as Witness—Cross-Examination without Prejudice. —The defendant, as a witness on his own behalf, testified that a few months before the homicide he went to a certain house where his wife and children were living for the purpose of seeing his son, who had been injured. On cross-examination he was asked if he had ever been to such house for two years before the visit testified to, and answered “no.” The question was objected to on the ground that it was not proper cross-examination. Held, that while ordinarily the question and answer might well prejudice the defendant by carrying with it the implication that he had unduly neglected his family, yet under the circumstances of this ease there could have been no such prejudice, as the evidence given in support of the defendant's case showed his complete estrangement from his: wife during such period, and that during that time he had frequent visits from his children. »</p> <p>Id.—Insanity — Intimate -Acquaintance — Witness.—The determination of the question as to whether one is an “intimate acquaintance, ' ’ and therefore competent under subdivision 10 of section 1870 of the Code of Civil Procedure to give an opinion as to the mental sanity of another, is necessarily to a great extent within the discretion of the trial court, and the ruling of that court ’ will not be disturbed except where the evidence is such as to leave no just room for question that the discretion has been improperly exercised.</p> <p>Id.—Witness fob Prosecution — Redirect Examination.—On cross: examination by defendant of his daughter, a witness for the prosecution, she was asked whether she or her mother, sister, or brother had visited the defendant in prison, and answered in the negative. On redirect examination she was asked why she had not visited him, and, over objection, said that he had never requested it, and she thought he never eared to see her. Seld, that in view of the cross-examination the redirect examination was probably proper, and in any event, in view of the evidence given in support of the defendant’s ease as to the relations between himself and his family, was without prejudice.</p> <p>Id.—Instruction—Distinction between Insanity and Insensibility. —In a prosecution for murder in which the defense is insanity the court may properly instruct the jury as to the distinction between the diseased and deranged condition of the mental faculties rendering a person incapable of distinguishing between right and wrong in relation to the act with which he is charged, constituting the insanity which the law recognizes as a defense, and mere mortal insensibility, passion, hatred, anger, etc., which do not constitute a defense, and caution them to observe the distinction. Such an instruction, if correct in matter of law, is not objectionable as showing a partisanship on the part of the court adverse to the defendant and his defense.</p> <p>Id.—New Trial—Misconduct of Judge and District Attorney—Conflict of Evidence.—A refusal to grant a new trial on the ground that the trial judge and district attorney had been guilty of misconduct prejudicially affecting the defendants’ cause will not be interfered with on appeal, when the evidence in reference thereto is substantially conflicting.</p>

<p>Contract to Construct Ditch—Independent Contractor—Liability for Negligence.—Under the contract referred to in the opinion, as well as from the evidence of the surrounding circumstances, it is held that the defendant dredging company, who had contracted to furnish a ditching dredger and fully equipped crew for the purpose of cutting a ditch through farming lands belonging to the other defendants, was an independent contractor, and solely liable for damages resulting to. an adjoining landowner for the negligent operation of the dredger, whereby his lands were inundated and his growing crops destroyed.</p> <p>Growing Crop—Measure of Damages—Value How Determined.—The true measure of damage for the total destruction of a growing or standing crop is the value of the crop in the condition it was at the time and place of destruction. In determining such value, in a suit brought by a lessee of the land on shares, the proper criterion to follow is to determine the probable yield and market value of the crop and deduct therefrom the cost of producing and marketing the same and the value of the share of the landlord.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. John A. ITosmer, Judge. The facts are stated in the opinion of the court.

<p>Contracts—Bules of Construction—Surrounding Circumstances.—• It is a well-settled principle applicable to the construction of contracts, that where one construction would make the contract unreasonable, unfair, or unusual and extraordinary, and another construction, equally consistent with the language, would make it reasonable, fair, and just, that the latter construction is the one which must be adopted. It is also a principle of construction with respect to ambiguous contracts, that the circumstances surrounding and known to both parties at the time of the execution of the contract may be taken into consideration in determining the meaning intended to be conveyed.</p> <p>Id.—Specific Performance—Agreement to Sell Half Interest in Land—Purchase Price at Specified Price per Acre.—In an action against the vendor to enforce the specific performance of a contract for the conveyance of a half interest in a large tract of land, it is held, in view of the situation of the parties and the surrounding circumstances at the time of the execution of the contract, that a provision in the contract giving the vendee the option of purchasing the land within a stated time, upon the payment to the vendor of “four dollars per acre for .the undivided one half of all said described lands,” should be construed as requiring the vendeo to-pay four dollars per acre for the entire area, although he receives therefor only an undivided one-half interest. The phrase “four dollars per acre” refers to the area and not to the interest, and the purchase price is found by computing the rate per acre upon the entire area of the land and not upon one half of such area. Such construction should also be given to the contract without aid from the surrounding circumstances.</p> <p>•Id.—Contract Must Be Seasonable and for Adequate Consideration. —Specific performance of a contract to convey land will not be decreed unless the contract is just and reasonable and based upon an adequate consideration.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frohman & Jacobs, Frank H. Short, and J. K. Law, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>New Trial—Settlement of -Statement—Construction of Statute Affecting.—Provisions of the statute for the settlement of statements on motions for new trial must lie liberally construed, with a view to promoting the rights of the parties and in the interests of justice. Such statements are ultimately used as a basis for presenting the merits of a case upon! an appeal, the right to which is constitutionally conferred, and no narrow construction should be placed upon a rule of procedure which will defeat that right. i</p> <p>Id.—Notice op Settlement—Extension op Time—Presentation pob Settlement.—Under section 1054 of the Code of Civil Procedure the court has power to extend the time provided hy subdivision 3 of section 659 of that code within which to give notice of the time for presenting a proposed statement on motion for new trial and, amendments thereto to the judge for settlement, and to extend the time for the settlement of the same for a corresponding period, the only requisite being that when such notice is given, the adverse party must have five days’ notice of the presentation. The power to extend the time for giving such notice is not affected by the fact that at the time the order of extension was made it was impossible, by reason of the lapse of time, for the moving party to have given five days’ notice to his adversary of such presentation within the ten days from the service of the amendments.</p> <p>Id.—Non-Acceptance op Amendments—Notice op Presentation in Due Time.—Where a party intending to move for a new trial in due time served its proposed statement on the motion, and the adverse party served amendments thereto, a notice by the moving party of the non-acceptance of the amendments which stated that “in due time” it would present them to the judge for settlement, is not to be construed to the effect that the proposed statement and amendments would be presented on actual notice. Properly construed, the notice meant that the moving party intended to pursue the general course required by section 659 of the Code of Civil Procedure, as the result of such non-acceptance, and permitted either a presentation to the judge on actual notice to the adverse party or a delivery to the clerk of the court for the judge.</p> <p>Negligence—Master and Servant—Sape Wat to Watercloset—Contributory Negligence.—Where an employer operating an extensive machine-shop and an adjoining planing-mill, which latter during working hours was an unsafe place by reason of its being filled with machinery in operation and materials in transit, and through which there was no regular pathway, has provided a safe and secure way to a watercloset at the rear of the planing-mill, for the use of his employees in the machine-shop, which did not lead through the planing-mill, it was the duty of an employee in the machine-shop having knowledge of such safe way to use it in going to or from the watercloset; and if he fails to make such use and is injured while passing through the planing-mill on his return from the closet, he is guilty of contributory negligence, and this is so although the route through the planing-mill was the more convenient.</p> <p>Id.—Knowledge op Sape Way—Presumption.—In the absence of direct evidence of such employee’s knowledge of the safe way it will be presumed that he did know of it from the facts that he had been an employee in the machine-shop for upwards of twenty years, and that his co-employees, of whom there were about one hundred, never took the route through the planing-mill. But independent of such presumption it was Ms duty to have ascertained whether a safe way had been provided by the employer for the benefit of himself and Ms co-employees.</p>

<p>Injunction—Game Preserve—Conspiracy to Trespass.—An injunction will lie, at the instance of the owners of an inclosed tract of land used as a game preserve, to restrain a large number of persons who were acting under rr> agreement and conspiracy between themselves from entering upon the land and committing continuous trespass thereon.</p> <p>Id.—Navigable Waters—Invasion op Private Land.—The public has no right to invade and cross private lands _ in order to reach navigable waters for the purpose of there hunting and fishing.</p> <p>Id.—Drainage Ditch not Navigable Stream—Destruction op Pences Across.—An artificial ditch, emptying into an estuary of the ocean, the right to construct and maintain which was granted by the owners of the preserve to the county solely for the purposes of drainage, is not a navigable stream over which the public have the right to travel in order to reach navigable waters entirely surrounded by the lands of the preserve. ' Neither the county nor the public have the right to destroy fences erected by the owner of the land across such ditch or along the right of way thereof which do not interfere with the drainage capacity of the ditch. Id.—Bight or State to Sell Water-Covered Land.—The state, subject to the paramount control of the general government touching matters of navigation and commerce, has the right to sell into private ownership any of its water-covered lands, the limitation upon its power in this regard being that such sales shall be in aid of, or at least not in derogation of, its governmental trust to preserve needed navigable waters for the benefit of its people. The state is not required to preserve the navigability of its waters for the use of the public who may desire to shoot wild game thereon.</p>

<p>Eminent Domain—Condemnation op Reclamation Right of Wat and Levees for Railroad.—Under subdivision 5 of section 1240 of the Code of Civil Procedure, providing that “All rights of way for any and all the purposes mentioned in section twelve hundred and thirty-eight, and any and all structures and improvements thereon, and the lands held or used in connection therewith shall be subject to be connected with, crossed, or intersected by any other right of way or improvements or structures thereon,” the right of way of a reclamation district for levee purposes, and the levee constructed thereon, may be subjected to a limited use by a railroad company for right of way purposes for its railroad, such use to be in common with that of the district. The application of this-provision of the section is not restricted to property owned by private persons or corporations, and the fact that the right of way of the district and the levee constructed thereon constitute public property acquired by the agents of the state for state purposes does not preclude its application to such property. There is no constitutional objection to such a construction of the statute.</p> <p>Id.—Easement fob Levee Is a Eight of Way.—The easement of a reclamation district for its levee constitutes a "right of way” within the meaning of that term as used in subdivision 5 of section 1240 of the Code of Civil Procedure, and is a right of way for one of the purposes mentioned in section 1238 of that code, enumerating the public uses in behalf of which the right of eminent domain maybe exercised.</p> <p>Id.—Subsequent Less Necessary Public Use—Use in Common.—• Where, as in the case of the right of way for a railway, the subsequent use is not a more necessary public use than that to which the property has been already appropriated, there can be no such interference with the former use as will substantially or materially affect the efficiency of the reclamation works. But it cannot be said, as matter of law, that a limited use by the railway in common with the reclamation district cannot be so regulated that there will be no material interference with the reclamation works.</p> <p>Id.—Jurisdiction of Superior Court—Pacts Justifying Taking.—The superior court has jurisdiction of an action in eminent domain to condemn for the use of a railroad right of way a strip of land which is already subject to an easement for a levee of a reclamation district, and whether or not the facts in such action are such as to justify the taking is for the determination of the trial court in the lawful exercise of its jurisdiction, and cannot be determined on prohibition.</p>

<p>APPLICATION for a Writ of Prohibition directed to the ■Superior Court of Sacramento County. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tehama County. 3. P. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>: School Lands—Certificate of Bübchase—Burchase fob Sole Use and Benefit of Applicant—Agreement to Bat fob Services in Land Office—Borrowing Monet to Burchase.—A certificate of purchase .of school lands is not rendered void on the ground that the applicant did not apply to purchase the land for her own use and benefit, as required by section 3495 of the Political Code, merely by the fact that prior to her application she had obtained a description of the land from a third person, and had agreed to pay him for his services in attending to the matter for her in the land-office when the land was sold, nor by the fact that she had borrowed from him the money to pay for the land under an agreement to execute to him a mortgage on the land as security for the loan after she had received the certificate of purchase. Such agreements created mere personal obligations on the part of the applicant and did not give the person with whom they were made any interest in the land.</p> <p>Id.—Applicant Mat Borrow Monet to Purchase.—There is no law which prevents a purchaser of land from the state from borrowing money with which to make payment for the land under an agreement to mortgage the land to secure its repayment after the certificate of purchase is obtained.</p> <p>Id.—Contest as to Bight to Purchase—Inference for Trial Court. —On a contest brought under section 3414 of the Political Code, involving conflicting applications to purchase a section of school land from the state, it was for the trial court to determine the inferences to he drawn from the facts that the applicant first in point of time had her attention called to the land by a third person; that she agreed to’pay him for Ms services relative to it; that she borrowed through or from him the money to pay therefor, and that she sold the land to another person immediately on receiving the certificate of purchase. And where both of these persons testified positively that no arrangement for an interest in the land existed between them, a finding in conformity to their testimony will not be disturbed.</p> <p>Id.—Purchase for Speculation—Intent to Sell at Time of Application.—Under section 3495 of the Political Code, providing that an applicant to purchase school lands not suitable for cultivation, such as timber lands, must state in his affidavit "that he desires to purchase the same for his own use and benefit, and for the use or benefit of no other person or persons whomsoever, and that he has-made no contract or agreement to sell the same,” and section 3515 of the same code, providing that " certificates of purchase, and all: rights acquired thereunder, are subject to sale, by deed or assignment/'’ the fact that the applicant purchased the land solely with a view to speculation, and with the intention of selling the land, if a satisfactory price could be had, as soon as the certificate was-obtained, does not invalidate the certificate.</p> <p>Id.—female Applicant—Affidavit—Bight to Purchase Beal Estate. —Under section 3496 of the Political Code a female applicant for the purchase of school lands must show in her affidavit that she was entitled to purchase real estate in her own name. A mere-statement in her affidavit that she was entitled to purchase ami hold real estate in her own name, while imperfect, will not be held to invalidate her application to purchase, when it appears on the contest that she was an unmarried woman, and hence entitled to hold real estate.</p>

<p>Criminal Law—Grounds of New Trial.—In a criminal case, in view of the positive and unambiguous language of section 1181 of the Penal Code, a motion for a new trial can be granted only in the cases therein mentioned.</p> <p>Id.—Legislature Sole Power to Determine Grounds of New Trial.— Whatever may be the constitutional rights of a defendant on an appeal from a judgment, whether or not the remedy by motion for a new trial shall exist in any class of cases, and, if so, upon what grounds, are questions for the exclusive determination of the legislature.</p> <p>Id.—Misconduct of District Attorney not Ground for New Trial.— Under section 1181 of the Penal Code, in a criminal case the misconduct of the district attorney, unaccompanied by any error of the court, is not a ground for granting the motion of the defendant for a new trial. Such misconduct is not included within the meaning of subdivision 5 of that section, authorizing a new trial when the court has misdirected the jury in matter of law, or has erred in the decision of any question of law arising during the course of the trial, nor within the meaning of subdivision 6, providing for a new trial when the verdict is contrary to law or evidence.</p> <p>Id.—Misconduct of District Attorney—Appeal from Judgment.—In view of the fact that the misconduct of the district attorney has so often been held to constitute a sufficient ground of reversal of the judgment, it may have become a settled rule that such misconduct will be considered upon an appeal from the judgment when presented by a proper record, and the points saved for review by exception. But an order of the trial court granting the defendant a new trial on that ground alone, where no other good legal ground for such action appears, is erroneous and must be reversed on appeal.</p> <p>Id?—Embezzlement — Payment of Private Debt — Evidence.—In a prosecution for embezzlement, evidence for the prosecution to the effect that the defendant a few days before the discovery of the offense had made a payment on an interest-bearing indebtedness not yet due, even if immaterial, was unimportant, and could not have been prejudicial.</p> <p>Id,—Comparison of Testimony of Witnesses—Instruction.—An instruction requested by the defendant, calling particular attention to the testimony of a witness for the people as opposed to the testimony of a witness for the defense, which carried with it the-intimation that the witness for the prosecution was to be distrusted, was properly refused.</p> <p>Id.—County Treasurer—Evidence op Auditing Boaiu>—Instruction. —In a prosecution of a county treasurer for the embezzlement of public funds, when there was no question as to the truth of the uncontradicted evidence of the officers who made the official count of the money in the county treasury on a certain date, as to" the amount and kinds of money and vouchers then in the treasury, the refusal at the request of the defendant to give an instruction to the effect that it was a presumption of law that the report then made and signed by them, which corresponded with their evidence, was correct, could not have been prejudicial.</p> <p>Id.—Lawful Money op United States—Presumption.—In such a prosecution, where the information charges the embezzlement of a certain sum of money, lawful money of the United States, and the evidence showed that defendant, at the time of the official counts of the money in the treasury, had on hand as a portion of the balance, in place of coin, certificates of deposit of banks, and some cheeks and money orders, which were carried as money by him, and counted as such by the auditing board, an instruction to the effect that if the regular sworn statement made by the defendant to the county auditor showed a balance of money on hand, the law presumes, in the absence of evidence to the contrary, that such balance was in lawful money of the United States, is correct as an abstract proposition of law, and under the circumstances could not have prejudiced the defendant.</p>

<p>Jurisdiction of Superior Court—How Determined.—The test of the jurisdiction of the superior court is ordinarily to be found in the nature of the case as made by the complaint and the relief sought. The fact that the plaintiff does not succeed in establishing all that he claims does not oust the court of its jurisdiction to give judgment for so much as is established.</p> <p>Id.—Mechanic’s Lien—Suit in Equity.—-An action for the foreclosure of a mechanic’s lien is a suit in equity, of which the superior court has jurisdiction, either to grant the relief demanded in whole or to refuse it in whole, or to grant it in part and refuse it in part.</p> <p>Id.—Equity Will Give Complete Belief.-—When a court of equity once obtains jurisdiction of a case it will decide the whole ease as between the parties and not leave any part of it for future litigation.</p> <p>Id.-—Finding against Lien—Jurisdiction to Bender Personal Judgment Less than Three Hundred Dollars.—The superior court in an action brought in good faith to foreclose an asserted mechanic’s lien has jurisdiction, upon finding against the claim of lien, to render a personal judgment against the defendants for the amount for which the lien was claimed, although such amount was less than three hundred dollars.</p>

<p>Estates of Deceased Persons—Petition fob Distribution—Collateral Attack upon Probate of Will—Fraud.—A petition for distribution of the estate of a deceased person is an independent and wholly distinct proceeding from that of the probate of the will of the decedent; and an attack made under such petition by heirs upon the probate of the will, on the ground of forgery and fraud in the procurement, is not direct but collateral. Whatever may be the jurisdiction of equity to grant relief from fraud, the collateral attack upon the will upon distribution cannot be sustained, if the probate thereof is not void upon its face for want of jurisdiction.</p> <p>Id.—Conclusiveness op Independent Steps in Administration.—Each independent step in the course of administration of the estate of a deceased person from, which an appeal may be taken may become finally conclusive against inquiry upon any subsequent independent step in the course of such administration.</p> <p>Id.—Notice op Hearing op Probate—Subsequent Hearing and Probate—Adjournments not Appearing—Irregularity.-—Where the probate of the will was had upon a hearing eight months after the time noticed for the hearing, and the record fails to show adjournments of the hearing, such subsequent hearing and probate was at most an irregularity in the exercise of jurisdiction acquired by the notice, which did not render the probate of the will void upon its face.</p> <p>Id.—Presumptions in Pavor op Action op Superior Court.—The superior court, when dealing with probate matters, is to be considered a court of general jurisdiction; and the same presumptions attach to its acts as to any other action or proceeding over which it has jurisdiction. The presumption is that everything was done that was necessary to sustain the action of the court; and where the record is silent the presumption is that that was done which was requisite to sustain the jurisdiction.</p> <p>Id.—Recitals in Order Admitting Will to Probate.—The recitals in the order admitting the will to probate, that the petition came on regularly for hearing, and that notice had been given as required' by law, are sufficient to justify the presumption that orders for adjournment of the hearing were made, where the contrary does not affirmatively appear from the record.</p> <p>Id.—Proceeding in Rem — Constructive Notice to Non-Resident Heirs—Constitutional Law.—The probate of a will is a proceeding strictly in rero; and the provision for brief constructive notice of the hearing is not against public policy, nor unconstitutional as against non-resident heirs, who have a full year in which to contest the will.</p> <p>Id.—Distribution under Will —Heirs not Interested — Petition Properly Stricken ' Out.—The probate of the will being valid, distribution was properly made thereunder; and the petition of heirs for distribution who have no interest under the will was properly stricken out. The striking out of their petition for want of interest did not deprive them of their day in court, they having had their hearing upon the question of their right to attask the probate of the will upon the facts alleged in their petition.</p> <p>Supreme Court—Jurisdiction—How Acquired—Loss of Transcript. —The supreme court acquires jurisdiction of an appeal for all purposes immediately upon the filing of the notice of appeal in the lower court, and its jurisdiction is not divested nor suspended either on account of the failure to file a transcript on appeal, or by the loss or destruction of the transcript after it is filed.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Chief of Police of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Habeas Corpus—Proceedings after Petition—Pleading—Traverse—■ Burden of Proof.—The function of a petition for a writ of habeas corpus is to secure the issuance of the writ, and when the writ is issued, the petition has accomplished its purpose. The writ requires a return by the officer or other person having the custody of the prisoner. To such return the petitioner may present exceptions, raising questions o-f law, or a traverse, raising issues of fact, or both. Where the return is not subject to exception,—that is, where it sets forth process which on its face shows good ground for holding the prisoner, such process being produced at the hearing, and the traverse alleges matter tending to invalidate the apparent effect of such process,—the burden of proving such new matter is on the petitioner. Adopting the analogy of pleadings in civil actions, the return is the complaint, the traverse is the answer; new matter set up in the traverse is deemed denied, and must be proved by the party alleging it.</p> <p>Criminal Law—Extradition—Trial for Other Offense — Offense Committed Subsequent to Extradition.—So far as relates, to international as distinguished from interstate extradition, it is the general rule that a prisoner extradited from a foreign country for a particular offense cannot be tried upon any other charge until his trial upon the original charge has been brought to a final conclusion, and he has had a reasonable time within which to return to the country from which he had been extradited. Such rule, however, only applies to crimes alleged to have been committed prior to his extradition, and does not apply to crimes committed after his extradition in the country to which he was returned, and while his trial on the charge for which he was extradited remains undetermined.</p> <p>Id.—Treaty of 1889 between United States and Great Britain— Extradition Act of Canada—Revised Statutes.—Neither articles HI nor IY of the extradition convention concluded between the United States of America and Great Britain in the year 1889, nor the Extradition Act of the Dominion of Canada, nor section 5275 of the Revised Statutes of the United States, exempts a person extradited from the province of British Columbia to the state of California from being tried in that state for a crime there committed subsequent to his extradition and while his trial on the charge for which he was extradited remains undetermined.</p> <p>Id.—Intent of Parties to Treaty—Treaty of 1842.—Article III of that convention, providing that “no person surrendered by or to either of the high contracting parties shall be triable or tried for any crime or offense, committed prior to Ms extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered, ’ ’ by limiting the exemption to crimes committed prior to extradition, indicates an intent on the part of the contracting parties that persons surrendered should not be exempt from prosecution for crimes subsequently committed. If under the treaty of 1842 between the United States and Great Britain there was any exemption for such subsequent crimes, the exemption was removed by the convention of 1889.</p> <p>Id.—Extradition Act of Canada—Surrender in Contravention of Act.—The provision of the Extradition Act of the Dominion of Canada prohibiting the extradition of any person to any state or country "in which, by the law in force in such state or country, such person may be tried after such extradition for any other offense than that for which he was extradited, unless an assurance shall first have been given by the executive authority of such state or country that the person whose extradition has been claimed shall not be tried for any other offense, ’ ’ only has the effect to lay down a rule for the government of officials of the Dominion of Canada. They may under this act have had the right to refuse to surrender an accused person without receiving the assurance referred to in the act. If they did surrender him without such assurance the rights of the United States and of the state of California after receiving the prisoner were limited only by the provisions of the treaty.</p> <p>Id.—Perjury on Trial for Prior Perjury—Effect of Judgment— Habeas Corpus.—A prisoner indicted for and convicted of perjury alleged to have been committed as a witness in his own behalf on his trial under an indictment for a prior charge of perjury, and which trial resulted in a disagreement of the jury, is not entitled to be discharged on habeas corpus on the' ground that the perjury with which he was charged in the second indictment consisted in swearing to some of the same matters which formed the basis of perjury in the first indictment. Whatever might be the effect of an acquittal or conviction in one trial is matter of defense to be relied on in the other. It does not go to the jurisdiction and affords no ground for release on habeas corpus.</p> <p>Id.—Voluntary Surrender after Giving Bail.—A prisoner arrested under an indictment and extradition proceedings thereunder who was released on bail and who thereafter voluntarily surrendered himself into custody and has not since given bail, and whose trial has not been unreasonably postponed against his objection, is properly held in custody under a bench warrant issued upon such indictment and extradition proceedings.</p> <p>Id.—Writ of Error to Supreme Court of United States—Admission to Bail Pending—Effect of Remand on Habeas Corpus.—When, after a hearing upon his petition for a writ of habeas corpus,' a prisoner has been remanded to the custody from whence he came, there is ordinarily no proceeding to be stayed pending a review of that order on writ of error to the supreme court of the United States. The prisoner is not thereafter held by virtue of the order of remand, but by virtue of the warrant or other process upon which he was held at the time the writ of habeas corpus was issued, and the power to admit him to bail belongs exclusively to such officer, if any, as had the power to admit him to bail independent of the habeas corpus proceeding, and he must make his application for bail in the usual manner as provided by the laws of this state. [Per Beatty, O. J.]</p>

<p>Practice—Service of Summons by Publication—Bight of Defendant to Answer to Merits—Setting Aside Judgment.—Under section 473 of the Code of Civil Procedure, providing that “When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action,” a defendant served by publication only, on an application made by him to vacate a judgment against him, and to be allowed to answer to the merits, need not present any excuse for his failure to appear except the fact that he was not personally served with the summons. In such a case there is no presumption of knowledge of the proceedings or of inexcusable • negligence on his part. If there was any neglect on his part to the injury of the opposite party, which would make it inequitable1 to grant him the relief, proof of such neglect and of the circumstances causing injury must come from the plaintiff.</p> <p>Id.-—Imposition of Terms.—The effect of the qualifying phrase “on such terms as may be just,” found in section 473 of the Code of Civil Procedure, is not to give the court power or discretion to refuse the relief when the statutory conditions, expressed or implied, are met, but merely confers upon it the power, when it finds the defendant entitled to the relief, to consider whether or not the defendant may not have been negligent in a degree amounting to laches or creating an estoppel and whether or not the plaintiff or his successor may not have innocently, on the faith of the judgment, incurred costs or expenses which the defendant in justice should refund, and to impose on the defendant such terms as may be necessary to do complete justice between the parties, or to fix the time for filing the answer and limit and define its character so that it shall be addressed to the merits.</p> <p>Id—Defense on Merits Must Be Shown—Quieting Title.—From the fact that the relief to be afforded such a defendant is the privilege of answering to the merits of the original action, the condition is implied that he must have a good defense to the action on the merits, and in an application to vacate the judgment he must show that such defense exists. Such defense is sufficiently shown in an action to quiet title to land by affidavits to the effect that the defendant is and at all times mentioned and for more than ten years last past has been the owner of and entitled to the possession of the land described in the complaint.</p>

<p>Practice—Disqualification of Judge—Interest in Action—Action for Damages for Failure to Deliver Water.—In an action against a water company whose waters were obtained by diversion from a natural stream and stored in reservoirs, the sole purpose of which action was to recover damages from it for its failure to deliver to the plaintiff the amount of water to which he was entitled under a contract with the company and which the complaint alleged the company was able to supply from the quantity of water it had on hand, an answer of the company denying that the plaintiff was entitled to the full supply of water alleged, but admitting that he was entitled to share with a large number of other persons in whatever water the company might have for distribution, and also alleging that certain persons, including the judge of the court, were entitled to prior and paramount rights in the waters of the stream, that the company had only a right to the surplus waters thereof, and that during the time complained of the owners of these paramount rights claimed- that the company was taking more water than it was entitled to, and that a complete determination of the issues could not be had without bringing all those parties, including said judge, into court as parties to the action, shows no necessity of joining the owners of such paramount rights as parties to the action, and the judge of the court, before whom the action is pending, is not disqualified from trying it.</p> <p>Id.—What Interest Disqualifies Judge.—The interest in an action which disqualifies a judge who possesses it from trying the cause is a property or personal interest, an interest in the event of the suit, in the judgment which may be rendered therein. It must affect him, either in person or property, directly or indirectly. A mere sentimental interest or an interest in the facts which the issues make it necessary for him to determine, which may tend to induce him to give mdre weight to the evidence for one party than to the evidence for the other respecting such facts is not the interest which will disqualify him. It might tend to show his bias 'or prejudice, and might disqualify him on that ground.</p> <p>Id.—Prohibition—Bias of Judge in Favor of Applicant.—A writ of prohibition will not lie to prevent a judge from trying a ease on the ground of his bias or prejudice, when the facts relied on could only tend to create a bias or prejudice in favor of the party applying for the writ.</p> <p>Id.—Advice Given by Judge to Third Persons.—Section 170 of the Code of Civil Procedure does not disqualify a judge from trying a particular action merely because he has counseled or advised with other persons not parties to the action who are alleged to have similar causes of action with the one involved. And on an application by a defendant in the particular action for a writ of prohibition to restrain him from trying it, a mere allegation that he has given such advice, without an averment showing whether it was for or against such defendant, is not sufficient to show actual bias.</p>

<p>Estates of Deceased Persons—Will—Distribution—Unrevoked Probate..—An heir of a testator, whose estate has been finally distributed, has no independent right to complain of a distribution in full accord with the terms of the will, the probate of which has not been revoked, and which is unassailable either by proceedings to revoke the probate, or in an equitable action to have the distributees thereunder charged as trustees.</p> <p>Id.—Contest of Probate—Fraud in Securing Probate—Conspiracy —Contest after Probate—Limitation of Bight to Contest.—An heir of a testator, who was not a party to a contest of the will before probate resulting in a verdict sustaining the will, is not estopped or concluded by the result thereof, and could not have been injured by alleged fraudulent acts done by the proponents and beneficiaries under the will, in pursuance of a conspiracy between them to secure its probate, including the alleged fraudulent introduction of certain agents of the conspirators upon the jury which tried the contest. The only effect upon such heir of the decree entered upon such contest was to fix the beginning of the statutory limitation of one year after probate within which she might herself contest the will. On such a contest after probate no different measure of evidence or manner of procedure from that required, before probate was essential to a successful attack. If on such a contest after probate the genuineness of the will is not sufficiently proved, the probate must be annulled and revoked.</p> <p>Id.—No Fiduciary Relation between Heir and Beneficiaries under Will.—Proponents of and beneficiaries under a will which is offered for probate, who are not heirs at law of the testator, do not occupy any fiduciary relations to the heirs at law, imposing any special duty as to them.</p> <p>Id.—'■Effect of Decree Probating Will — Conclusive Evidence of Genuineness.—Under such a system as exists in. this state for the admission of wills to probate, the determination of the question of the genuineness of an instrument purporting to be a will is exclusively for the court to which the proof of wills is confided, and its decision therein is final and conclusive, and in the absence of some - law providing otherwise not subject, except on an appeal to a higher court, to be questioned in any other court, or to be set aside or vacated by a court of chancery on any ground. So long as the probate stands the will must be recognized and admitted in all courts to be valid, the unrevoked decree of probate standing as absolute and conclusive proof of its genuineness. This rule is absolute, at least in every case where there has been no breach of duty arising from a fiduciary relation on the part of those securing the probate of the will, no such extraneous fraud as operates to prevent the heir from appearing in the probate court and there contesting the will and exhibiting fully his case against the same, . and no lack of actual knowledge of the pendency of the probate proceedings operating to deprive the heir of an opportunity to so appear in the probate court and make his contest.</p> <p>Id.—Proceedings in Rem—Contest on Ground of Forgery—Failure\ to Contest in Time.—A proceeding for the probate of a will is a proceeding in rem. By the offer of the will for probate the proponents tender to the world the issue as to its genuineness. Any person interested may appear and contest the instrument so offered upon various grounds, including all grounds substantially affecting its validity or the question of its due execution. Failing to appear and contest before probate, the right exists for a full year after probate. One who must be held to have had actual notice of the proceedings in time to make his contest, and who fails to take advantage of the opportunity afforded of opposing the will by appearing and contesting within the time allowed by law, must at least, unless he can be held to have been prevented from so appearing and contesting by some fraud of those procuring the probate, be held concluded by the decree as to any matter concerning which he could have obtained relief by a contest. It can be no excuse for his failure to appear and contest that he did not know that the alleged will was not genuine. That it was genuine was one of the very issues tendered him by his adversary, which he was called upon to meet within the time allowed by law, or forever thereafter admit.</p> <p>Id.—Fraud in Procuring Probate—Contest Prevented by Fraud of Other Party.—The doctrine that where the probate of a will is obtained by rraud, equity may declare the executor or other person deriving title under it a trustee for the party defrauded, does not apply to such frauds as could have been relieved against by the probate court by refusing the probate of the will, where the injured party had actual notice of the probate proceeding in time to make his contest, and was not prevented from so doing by some fraud of the other party.</p> <p>Id.—Complaint to Charge Distributees as Trustees for Heirs—Intrinsic and Extrinsic Fraud.—-The complaint in an action in equity by the heir of a testator, whose property has been distributed in accordance .with his will, is insufficient to charge the distributees as trustees for the plaintiff, under allegations merely to the effect that the plaintiff had been deprived of property to which she would have succeeded as heir, by means of a false and forged will, established in the court having jurisdiction to determine as to its validity, by perjured testimony. The fact that the forgery and perjury were the result of a conspiracy between the beneficiaries under the will and the proponents thereof is immaterial, and could not operate to change what would otherwise be intrinsic fraud into extrinsic fraud.</p> <p>Id.—Notice of Application for Probate—Non-Resident Heirs—Due Process of Law.—A notice of an application for the probate of a will, given by publication for a period of ten days, as provided by section 1303 of the Code of Civil Procedure, does not operate, as to a non-resident heir having no actual notice and so situated as not to be able to receive the notice in time to appear and contest the probate on the original hearing, to deprive him of his property without due process of law. Inasmuch as the rights of the nonresident heir are in no way concluded by the decree rendered on the original hearing, he having an entire year thereafter in which to attack the will on the same grounds and for the same reasons that he could attack it before probate, the measure of evidence demanded of him for a successful attack being no different in the two cases, due process of law is in no degree denied to the non-resident heir by the provision as to notice of the original hearing.</p> <p>Id.—Constitutional Law—Different Manner of Notice to Resident and Non-Resident Heirs—Section 1301 of the Code of Civil Procedure, requiring, in addition to the constructive notice provided for by section 1303, personal notice to be mailed to or personally served on heirs of the testator residing in the state, but making no provision for such personal notice to non-resident heirs, is not violative of the fourteenth amendment of the federal constitution, as discriminating against non-residents. The very fact that one is a nonresident of the state is, from the necessities of the case, a sufficient reason for a difference in the manner of notice. If the manner of notice provided for an absent party is reasonable and adequate for that purpose, he cannot complain thereof on the mere ground that it is different from the notice provided for residents. He has not been deprived of due process of law.</p>

<p>Negligence—Manner of Constructing Boadway—Undisputed Pacts —Negligence Question of Pact.—In an action, tried without a jury, to recover damages for the defendants’ alleged negligence in constructing and maintaining a temporary roadway in a particular manner, in which the facts are undisputed, the question of negligence is not one of law,-hut is for the trial court to determine as a matter of fact, considering all of the circumstances shown by the evidence.</p>

<p>The facts are stated in the opinion of the court and in the opinion in Montecito Valley Water Co. v. City of Santa Barbara, 144 Cal. 578.</p> <p>W. S. Day, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Bailroad—Original Purchaser op Ticket—Evidence op Identity— Bight of Bailroad Agent to Demand.—An agreement in a railroad ticket to the effect "That I, the original purchaser, will sign my name and otherwise identify myself as such purchaser, whenever called upon so to do by any conductor or agent of the line or lines over which the ticket reads," does not make the railroad's agents the absolute arbiters of the identity of the holder of the ticket, but only entitles them to demand reasonably satisfactory evidence of identification.</p> <p>Id.—Wrongful Ejectment of Passenger—Verdict of Eive Hundred Dollars not Excessive.—Where a married woman, traveling on such a ticket with her nursing child, after furnishing the agent of the railroad with all the means in her power in proof of her identity with the original purchaser, including the repeated writing of her signature, is wrongfully ejected from the train, in the night-time, at a station far from her home, without her baggage and without money, a verdict in her favor, against the company, for the sum of five hundred dollars is not excessive.</p>

<p>APPLICATION for a Writ of Mandate to the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Sullivan & Sullivan, and Theo. J. Roche, for Petitioner.</p>

<p>Practice—Belief from Default—Application Must Be in Beasonable Time.—Under section 473 of the Code of Civil Procedure an application to be relieved from a default judgment taken against a defendant through his mistake, inadvertence, surprise, or excusable neglect, in addition to being made within the period of six months thereby limited, must be made within a reasonable time after the judgment was taken. What is a reasonable time in any case depends upon the circumstances of that particular case, to be determined by the court to which the application is addressed.</p> <p>Id.—-Discretion op Trial Court—Appeal.—In determining what is such reasonable time a large discretion is necessarily confided to the trial court, and the appellate court will not interfere with the exercise of its discretion, unless it is plainly made to appear that such discretion has been abused, and this rule is applicable whether the motion for relief has been granted or denied.</p> <p>Id.—Unexplained Delay op Pour Months—Denial op Application.— Where a defendant against whom a default judgment has been taken, after having acquired full knowledge of the facts, delays for nearly four months the making of an application to be relieved therefrom, and during that period fails to give any intimation to the opposing party of his intention so to apply, a satisfactory explanation excusing the delay must be made, otherwise the application should be denied on the ground that it was net made within a reasonable time. In the present case the reasons urged to excuse the delay were properly held unsatisfactory by the trial court.</p>

<p>Place op Trial—Action Brought in Wrong County—Time to Demand Change.;—If a defendant desires a change of the place of trial on the ground that the action is brought in the wrong county he ought to move for, or at least demand, a transfer on his first ' appearance in the cause. And if it is made afterwards the applicant must explain any seeming lack of diligence on his part.</p> <p>Id.—Denial op Change—Subsequent Motion—Lack op Diligence.— Where a corporation defendant at the time of its appearance presents a demand and notice of motion for a change of the place of trial on the ground that the county in which the action was brought was not the proper county, and accompanies it with affidavits by one of its officers, and such motion is denied, a subsequent motion for such change, made about seven months after-wards, on the same ground and based upon the original demand and additional affidavits, should be decided upon the conditions as they existed at that time, and not upon the conditions existing at the time of the original demand. And where the affidavits used on the subsequent motion, although showing the defendant to have been entitled to the change at the time of the original demand, state no facts that should not have then been known to the defendant’s officers, it will be presumed on appeal, in support of an order refusing the subsequent motion, that it was denied because of the lack of diligence displayed by the defendant in prosecuting it.</p>

<p>Water-Ditch—City Street—Consent op Abutting Owners.—The consent of the owners of lots abutting on a street in a city to the construction and maintenance of a water-ditch in the street is not binding on the municipal authorities.</p> <p>Id.—Indefinite Grant op Eight op Way—Determination by User— Subsequent Change op Size and Location—Public Highway.— An oral grant by the owner of land of a right of way to make or use a ditch along the same which was indefinite both as to the size and precise location of the ditch, becomes fixed and certain as to its size and location by the taking and using of an existing ditch for the purposes agreed upon. The grant of such right of way did not carry with it the right to subsequently enlarge the old ditch, change its course, or make another ditch upon a new line. Consequently, a new ditch subsequently constructed along the land upon a different line, after the land had been dedicated to and accepted as a public highway, is an unlawful obstruction to such • highway.</p> <p>Id.—Adverse Possession—Prescriptive Bights in Highway.—The user for a period of eleven years of a ditch unlawfully constructed and maintained in a public highway, without objection from the public authorities, creates no prescriptive right in favor of the owner of the ditch to continue to maintain the same as a ditch along the highway.</p>

<p>Election—Piling Certificates of Party Nominations—Computation of Time.—Under section 1192 of the Political Code, as amended in 1901, providing that certificates of party nominations, not made by a party convention, but by electors signing the same and designating themselves as a political party with a specified party name, may be filed "not more than fifty days nor less than twenty days before the day of election,” the word "days” as there used refers to a day as a unit of time, and not as an aggregation of a certain number of hours, minutes, or seconds. In making such computations, the hours are not counted to ascertain whether a period of twenty-four hours, or a given number of such periods, have elapsed between the act to be done and the day from which the time is to begin running. Consequently, every day and every part of that day is one day before every part of the succeeding day.</p> <p>Id.—Twenty Days before Election.—Such certificate of nomination filed at any time on the seventeenth day of October for an election to be held on the "sixth day of the succeeding November is filed twenty days before the day of election.</p> <p>Id.—Certificate Mat Be Filed after Lawful Hours if Office T= Open.—Conceding that the registrar of the city and county of Sam Francisco is not required to keep his office open for the reception of such certificates of nomination after the hours prescribed by law, yet if he does keep his office open after those hours, it is his duty to receive and file such certificates, though presented after the lawful hours.</p>

<p>Will—Evidence — Mental Condition oe Testator — Intimate Acquaintance—Discretion oe Trial Judge.—The trial judge must determine in the first instance whether or not a proposed witness as to the mental condition of a testator is or is not an “ intimate acquaintance” within the meaning of subdivision 10 of section 1870 of the Code of Civil Procedure, allowing such persons to testify as to their opinion on that subject, and his determination will not be disturbed on appeal, unless a clear abuse of discretion appears.</p> <p>Id.—Slight Opportunity for Observation.—It is not an abuse of discretion for the trial court to refuse to accept as an “intimate acquaintance” of a testator whose mental capacity is in question, a witness who had only observed him on three occasions while giving him massage treatment.</p> <p>Id.—Opinion as to Mental Condition—Limitation as to Time.—The opinion of an “intimate acquaintance” as to the mental condition of a testator whose will is being questioned on the ground of his insanity must be based on the observation of the witness, and should be limited to some period of time at which the witness has come in contact with him. Such a witness cannot give his opinion as to the testator’s mental capacity at the date of the execution of the will, if he had not seen him for several months prior thereto.</p> <p>Id.—Time to which Opinion Relates.—While evidence as to the mental condition of the testator at times more or less remote from the date of the execution of the will is admissible, the trial court may properly require the party offering such evidence to specify the time to which it relates in order that its weight may be intelligently estimated. And where a witness has testified to an acquaintance with the testator for fifteen years, it is not error to refuse to permit the witness to express an opinion as to his mental condition which is not directed to any specific period. Nor is it error to refuse to permit a witness to testify as to whether the testator, prior to the date of the will, was able to attend to his business transactions, or to find his way on the public streets.</p> <p>Id.—Contest oe Will—Evidence—Hearsay.—On the trial of a contest of a will, where a witness for the contestants had testified that the testator, a man of advanced years, had told her that he was going to marry her niece, a girl of seventeen, it is proper to sustain an objection to the question, “Do you know whether any one conversed with him or endeavored to dissuade him from the belief that a marriage would take place between himself and your niece?” Such question called for hearsay and was incompetent.</p> <p>Id.—Knowledge ob Belief of Testatob.—On such a trial, a witness cannot testify as to the knowledge or belief of another; and while a delusion of the testator regarding a marriage might have been material, the materiality of the fact does not permit a party to establish it by incompetent testimony.</p> <p>Id.—Instructions to Draftsman of Will.—Where the attorney who drew the will in question was examined as a witness for the contestants regarding the directions and instructions given by the testator for the drawing of the will, it was proper on cross-examination to inquire fully into all that was said by the testator to the witness regarding his testamentary wishes. If the witness, in answer to a proper question designed to elicit such testimony, gives further improper testimony, the contestants’ remedy was to move to strike out so much of the answer as was objectionable.</p> <p>Id.—Lease Executed by Testatob.—A lease executed by the testator was material and competent as tending in some degree to show the business capacity of the testator; and upon its being properly identified, and its due execution shown by the notarial certificate of acknowledgment attached, was admissible in evidence.</p> <p>Id.—Expert and Opinion Evidence—Immaterial Error.—Where a witness for the proponents had testified fully concerning the ability of the testator to conduct his business affairs, and had given the details of a certain transaction between them, it was error to permit the witness to answer a further question as to whether in his opinion the testator in such transaction “bad .received as much as was coming to him.” The subject of the inquiry was not one calling for expert or opinion evidence, and an ocjeetion to the question on the ground of ineompetency, and calling for a conclusion of the witness, should have been sustained. In view, however, of the other testimony of the witness as to the ability of the testator to manage his own affairs, the error in allowing the question was harmless.</p> <p>Id.—Instructions—Constitutional Law—Discrediting Testimony of Particulab Witness.—Under the provisions of the constitution prohibiting judges from charging juries as to the facts, a requested instruction in a contest of a will on the ground of the testator’s insanity, is properly refused if it was calculated to discredit the testimony of the subscribing witnesses, in comparison with the testimony of other witnesses.</p>

<p>The facts are stated in the opinion of the court, and in the opinion in Tally v. Parsons, 131 Cal. 516.</p>

<p>Public Highway—Easement—Use by Owner of Pee—City Street.—> One who grants to the public the right to use a strip of land as a highway, retaining in himself the ownership of the soil, parts with an easement merely, and may use the property over which the right of way exists in any manner and for any purpose not inconsistent with the full and free enjoyment of the easement. This rule applies to land devoted to use as a public road or street as well as to land subject to private use only. In the case of a public road or street this right of the owner may grow less and less as the public needs increase, but at all times he retains all that is not needed for public uses, subject, however, to municipal or police regulations.</p> <p>Id.—Excavation of Surface of Street—Water-Pipe Crossing Street. —Inasmuch as the right to use the soil below the surface of the street can rarely be practically enjoyed without first disturbing the surface temporarily in making the necessary excavations, the owner of the fee has the right to make such excavations as will enable him to install the materials or do the work requisite for an enjoyment of his rights in the land. The occupation of the soil by a water-pipe to convey water across the street of a city for ' purposes of irrigation, so long as no public use is impeded, is a legitimate use by the owner and carries with it the right to excavate the soil, subject to such restrictions by the municipality as will insure the least interruption to the public easement. Nothing contrary to this rule is to be found in the statutes or decisions of this state.</p> <p>Id.—Regulation of Use by Owner of Pee.—While the municipality may determine the extent and manner of the public use to be made of the streets, and may regulate the use by owners of the soil, it cannot arbitrarily take away the property rights of such owners.</p> <p>Id.—Ordinance Forbidding Use of Streets — Franchise — Reserved Right of Owner of Fee.—An ordinance of the municipality forbidding the laying of any pipe in a public street “without having first obtained from the board of trustees of said city the franchise or privilege of using such public street for that purpose,” does not purport to be a regulation of the manner of doing work. In so far as it assumes to require a franchise or privilege as a condition precedent to the occupation at all, it has no application to the reserved right of the owner of the soil who is seeking to use the street in a manner not in conflict with the public use.</p> <p>Id.—Presumption op Ownership to Center op Street.—An owner of land bounded by a public street is presumed to own the fee to the center of the way,</p>

<p>Execution—Money Judgment—Enforcement after Five Tears from Entry—Statute of Limitations.—The amendment of April 9, 1895, to section 685 of the Code of Civil Procedure, which in effect allowed a judgment for the recovery of money to be enforced or carried into execution after five years from the date of its entry, by leave of the court, upon motion, applied to all such judgments which had not been barred by the statute of limitations at the time of the amendment.</p> <p>Id.—Extension of Statute of Limitations—Constitutional Law.—■ The legislature had the constitutional power to make such amendment. It was, in principle and effect, in the nature of an extension of the period of limitation of an action, and such extension is always valid when made before the former period of limitation had expired. A judgment-debtor, or one against whom any cause of action exists, is subject to any change of the statute of limitations touching such judgment or other cause of action, if made before the action shall have been barred under the former law.</p> <p>Id.—Execution May Issue at Instance of Personal Representative of Judgment-Creditor.—Under section 686 of the Code of Civil Procedure, the personal representative of a deceased judgment-creditor may enforce the judgment by execution without resorting to a civil action thereon, and after the expiration of five years from the date of the entry of the judgment may apply to the court, upon motion, for an order that execution issue, as provided by section 685 of that code.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles L. Batcheller, Foster C. Wright, A. P. Thompson, and Davis, Kemp & Post, for Appellants.</p>

<p>Gift of Land—Absence of Fraud—-Deed from Mother to Son—Irrevocability of Gift.—An absolute gift of land made by a mother to her son freely and voluntarily in the execution of a purpose conceived by her so to dispose of the property, without the exercise of any fraud on the part of the son, and with full understanding on her part of all the facts and the effect of such a transfer, cannot afterwards be set aside at the instance of the' donor.</p> <p>Id. — Fraudulent Conveyance — Confidential Relation — Findings Negativing Fraud—Evidence.-—In an action by a mother to set aside a deed executed by her to her son on the ground that he had procured its execution by certain false and fraudulent representations, the evidence reviewed and held to sustain the findings to the effect that the son had never taken advantage of the confidential relation existing between him and his mother, had never made the representations as alleged, or any false or fraudulent representation, or any request for the execution of the deed, and that the same was executed by the mother voluntarily and with full knowledge of the facts and of the effect of the transfer, and with the intent to make an absolute donation to the son.</p> <p>Id.—Credibility of Witness.—The amount of credit to be given to the positive testimony of any witness is solely a question for the trial court, except perhaps where the testimony in the light of the undisputed facts is inherently so improbable and impossible of belief as in effect to constitute no evidence at all.</p> <p>Id.—Jury Trial—Findings of Are Advisory—Findings by Court.— In an action to set aside a deed for alleged fraud of the grantee, the parties are not entitled to a jury as a matter of right, and if a jury be called in it simply acts in an advisory capacity, the court being compelled to make findings of its own. In so doing the court is free to adopt or reject the findings of the jury as it deems proper^ and in determining whether the findings of the court are sustained by the evidence, it is immaterial that such findings are contrary to the findings of the jury.</p> <p>Id.—Evidence as to Property of Other Children of Grantor.-—In an action by a mother to set aside on the ground of fraud a deed of gift executed by her to one of her sons, evidence of other of her children as to whether their father had left any estate to them when he died is properly excluded when it is undisputed that the father did not die until some years after the execution of the deed.</p> <p>Id.—Immaterial Evidence—Unprejudicial Exclusion of Evidence.— In such action the exclusion of the evidence of a daughter as to whether her mother had ever given her any portion of her land at any time is without prejudice, when it is undisputed that by the deed assailed the mother gave practically all her property to the defendant; and evidence of such daughter as to her financial condition since, the execution of the deed is immaterial. So, also, the exclusion of the evidence of another son as to the property owned by him at the time of the execution of the deed, assuming it to have been admissible, is without prejudice, when it otherwise appears that such son had little if any property.</p> <p>Evidence—Witness—Rational Appearance.—A witness to a transaction is competent to testify as to whether one of the parties thereto then appeared to be rational.</p> <p>Id.—Reading Answer in Deposition—Waiver of Objection.—A party by permitting an answer to a settled interrogatory in a deposition, which is strictly responsive to the question, to be read without objection, thereby waives the right to object to the answer or to move to strike it out.</p>

<p>Quo Warranto—Application by Private Person for Leave to Sue— Discretion of Attorney-General—Control by Courts.—Assuming that the discretion of the attorney-general, under section 803 of the Code of Civil Procedure, in refusing leave to a private person to bring an action in the name of the state against an alleged usurper of a public office is subject to the control of a court, the power of the court to compel him to violate his own judgment by ordering him to grant leave to commence a suit, against his own conviction and conscientious belief that such leave should not be given, should be exercised only where the abuse of discretion by him in refusing the leave is extreme and clearly indefensible. When such an extreme case does not appear, a decree of a court compelling him to act against his judgment is erroneous and is itself an abuse of discretion.</p> <p>Id.—Insufficient Showing on Application—Allegations on Information and Belief.—At a general election the plaintiff and the defendant Glass had been candidates for the office of supervisor, and the election resulted in a tie. In pursuance of the provisions of section 1067 of the Political Code a special election was ordered and held, at which such defendant obtained a majority of the votes cast thereat, and received his certificate of election, under which he entered upon the possession of the office and was discharging its duties. No objection to the regularity and legality of the special election had ever been made and no proceeding had ever been instituted to assail it. The plaintiff thereafter applied to the attorney-general for leave to sue the defendant Glass under section 803 of the Code of Civil Procedure on the ground that Glass was usurping the franchises of said office, and at that time presented to him a document in the form of a verified complaint which he intended to file in his proposed suit. The complaint alleged on information and belief that at the general election four named persons were allowed to vote who were not residents of their voting precincts, whose votes were counted for Glass, and that an unnamed number of ballots having distinguishing marks thereon, the nature of which was not stated, were counted for Glass, and an unnamed number of legal ballots for the plaintiff were rejected. This complaint was the only showing made to the attorney-general in support of the application for leave to sue. Meld, that the showing made, being solely upon information and belief, was not sufficient to warrant a court in holding that the attorney-general ought to have been convinced that he had “reason to believe” that Glass had unlawfully intruded into and usurped said office of supervisor, and that a judgment directing a peremptory writ of mandate to the attorney-general commanding him, to grant leave to sue was erroneous.</p> <p>Id.—Affidavits on Application Should Be Positive.—An application to the attorney-general for" leave to sue under section 803 of the Code of Civil Procedure should be based on affidavits so full and positive from persons knowing the facts as to make out a clear case of right in such a way that perjury may be brought if any material allegation is false.</p>

<p>Contempt — Piling and Presenting Affidavits — Contempt in Presence of Court.—A contempt of court consisting of the filing and presentation to the judge in open court of contemptuous affidavits is one committed in the immediate view and presence of the court, and a citation, timely made, to show cause why the party guilty of the contempt should not be punished does not require an affidavit to support it.</p> <p>Id.—Judge Attacked not Disqualified in Contempt Proceedings.— A judge is not disqualified from sitting in proceedings in contempt merely because the alleged contempt itself consists in imputations upon his motives and attacks upon his- integrity.</p> <p>Id.—Attack on Integrity of Judge—Attorney Preparing Affidavits —Charges Made on Mere Belief.—Affidavits filed in support of an application for a change of judges, containing imputations upon the motives of the judge before whom the cause is pending, and attacks upon Ms integrity which are based entirely upon the belief of the affiant, without any attempt being made to state the source of the affiant’s information or the origin of Ms belief, are in contempt of court, and the attorney of the affiant who prepared and knowingly presented such affidavits to the court is equally guilty with his client of contempt.</p>

<p>APPLICATION for a Writ of Mandate to the Mayor and Board of Trustees of the City of Fresno.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations — Bonds for Current Expenses — Electric, Lighting—Care of Streets.:—Under section 862 of the Municipal Incorporation Act of 1883 (Stats. 1883, p. 93), a municipal corporation of the sixth class has power to incur the expense of purchasing electric lighting from a private company and the expense of the care and maintenance of the streets and public places in the city, and, under section 866 of that act, has power to issue the bonds of the city to supply any deficiency in the funds applicable to such purposes. Whether section 866 of that act has been repealed by the act of February 25, 1901, (Stats. 1901, p. 27,) conferring authority to create a bonded indebtedness for the sole purpose of permanent improvements, the cost of which could not be paid out of the ordinary annual income of the municipality, is not decided.</p> <p>Id.—Legislature May Validate Fast Transactions—Vested Bights. —In the absence of constitutional restrictions, the power of the legislature to validate past transactions which it could have authorized in advance is restrained only by the necessity of protecting vested rights, and in the case of bonds to be issued by a municipality there are no vested rights to be guarded.</p> <p>Id.—Legalizing Municipal Bonds—Act oe March 4, 1907—Constitu-tional Law—Special Legislation.—The act of March 4, 1907, legalizing bonds to be issued and sold by municipalities where authority for such issuance has been given by a vote of more than two thirds of the electors of such municipality, is not a special law, and is not in conflict with subdivisions 14 or 18 of section 25 of article IV of the constitution, forbidding the enactment of special laws giving effect to invalid deeds, wills, or other instruments, or legalizing, except as against .the' state, the unauthorized or invalid act of any officer. It is a curative act, and retroactive in its operation, applying exclusively to past transactions; but it embraces all municipal corporations, and every case in which not less than two thirds of the qualified electors voting at a special election called for the purpose have approved the proposed issue of municipal bonds. The fact that the law is limited in its application to bonds sold after its passage, and for not less than par, does not render the law special in a constitutional sense.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Purcell Rowe, C. H. Rippey, A. Haines, and J. S. Chapman, for Appellant.</p>

APPEALS from an order of the Superior Court of Los Angeles County directing the enforcement of a judgment and from an order denying a motion to recall the execution and vacate the former order. Waldo W. York, Judge. The facts are stated in the opinion of the court.

<p>Judgment fob Monet—Enforcement after Five Years—Section 685 of Code of Civil Procedure—Application to Existing Judgments .—Doehla v. Phillips, ante, p. 488, Affirmed.—BoeMo v. Phillips, ante, p. 488, affirmed as to the construction to be given to the amendment of 1895 to section 685 of the Code of Civil Procedure as to its applicability to money judgments in existence at the time of the passage of the amendment and not then barred by limitations, and as to the procedure for carrying such judgments into effect.</p> <p>Id.—Motion to Recall Execution—Counter Affidavit bt Judgment Creditor—Notice.—On a m’otion by a judgment debtor to set aside an order for execution made under section 685 of the Code of Civil Procedure, it is not error to permit the judgment creditor to file a counter affidavit without previous notice or service upon the judgment debtor. If the latter had desired to file an affidavit in rebuttal, a request for time so to do should have been made.</p>

<p>APPLICATION" for a Writ of Mandate to the Board of Medical Examiners of the State of California and to the members of said board.</p> <p>The facts are stated in the opinion of the court.</p> <p>Wallace W. Wideman, and Benjamin P. Welch, for Petitioner.</p> <p>William C. Tait, George B. Becke, Charles S. Wheeler, and J. F. Bowie, for Bespondents.</p>

<p>Judgment by Default—Corporation—Service on President.—A default judgment against a corporation is not void upon its face if the-complaint on which it is based sufficiently states a cause of action to give the court jurisdiction of the subject-matter, and the summons was duly served on the president of the corporation, and the default, and judgment were duly entered.</p> <p>Corporations—Special Meeting of Directors—Presumption of Notice—Recital in Minutes.—A recital regularly entered in the minutes of a special meeting of the board of directors of a corporation that the meeting was called by order of the president, raises a presumption that due notice of the meeting was given; and a finding in accordance with such presumption will not be interfered with on appeal where the evidence to the contrary is not. sufficient, as matter of law, to overcome it.</p> <p>Id.—Director Ceasing to Be Stockholder.—The fact that a director of a corporation has ceased to be a stockholder does not prevent his continuing to act as a de facto director nor make his action void as-to third persons.</p> <p>Id.—Ceasing to Transact Business—Defending Foreclosure Suit.— A corporation which was engaged in defending a foreclosure suit upon its entire property cannot be said during the period such suit was pending to have ceased the transaction of its regular business, within the meaning of the amendment of 1901 to section 358 of the Civil Code, providing that if a corporation "shall fail for a period of two years to select officers and transact, in regular order, the business of said corporation, its corporate powers shall cease. ’ ’</p> <p>Id.—Corporation in Existence por More than Ten Tears—Existence Continues until 'Judgment of Forfeiture.—Under the concluding clause of section 358 of the Civil Code, as amended in 1901, a corporation which had been in existence for fourteen years prior to such amendment, doing business as such, and claiming in good faith to be a corporation, cannot thereafter have its corporate existence questioned in an action by a judgment creditor of the corporation to enforce a stockholder’s liability in a subscription to its stock. Such a corporation continues to exist until, at the suit of the state, on the information of the attorney-general, its corporate franchise is declared forfeited.</p>

<p>Quieting Title—Abatement—Prior Action Pending.—In an action to quiet title to a specific tract of land, a plea in abatement of another action pending as to certain of the defendants is sufficiently sustained, and justifies the dismissal of the action as to them, by the introduction in evidence of the record of a prior pending action brought by the same plaintiff to quiet title to the same tract of land against such defendants.</p> <p>Id.—Tax-Deeds—Baird v. Monroe, 150 Cal. 560, Approved.—The various grounds urged against the validity of the tax-deed involved in this action are held to be untenable, and the validity of the deed is sustained, on the authority of Baird v. Monroe, 150 Cal. 560, and Garter v. Osborn, 150 Cal. 620.</p> <p>Summons—Affidavit for Publication—Showing of Diligence.—On a collateral attack, an affidavit for the service of summons by publication, on the ground that the defendant could not with due diligence be found in the state, which fails to state what information the affiant received concerning the whereabouts of the defendant from those of whom he inquired concerning him, is not fatally defective, if from the other facts stated in the affidavit it could be reasonably inferred that such inquiries to ascertain the whereabouts of the defendant were unavailing.</p> <p>Id.—Statement of Information as to Defendant’s Whereabouts.— Within the purview of the foregoing rule, such an affidavit is sufficient if it states that the defendant could not be found in the state after diligent search made therein for him by affiant, and that such diligent search consisted of making inquiries of each and every person from whom he had reason to believe he would receive knowledge of the whereabouts of the defendant, followed by a statement' of the persons of whom he made inquiries and why he expected them to know of his whereabouts.</p> <p>Id.—Judgment — Admissibility against Third Persons—Link in Chain of Title.—While it is a general rule that judgments bind only parties and privies, there is an exception to the rule universally recognized which sustains their admissibility, for certain purposes, - against third parties who are neither parties nor privies. This exception is that the judgment rendered in an action involving title to property, and in which it is determined that the title is in one of the parties to the action, is admissible in evidence in behalf of the party claiming under the judgment, and subsequently asserting a claim to the property affected by it as a link in his chain of title, although such judgment would not be conclusive on the party against whom it is offered, because he was not a party or privy thereto. It is admissible in evidence, not for the purpose of defeating or affecting any claim of title of a party who was not a party or privy to such judgment, but solely as a muniment in an asserted title.</p>

<p>Habeas Corpus—Remand by District Court op Appeal—Subsequent Application to Supreme Court.—Since the amendment of March 18, 1907, to section 1475 of the Penal Code, after the district court of appeal has by the unanimous decision of the three judges remanded a prisoner on habeas corpus, a single justice of the supreme court cannot issue a new, writ upon a similar petition returnable before himself, and upon the hearing overrule the decision of the district court of appeal and discharge the prisoner. Under that section, as amended, it is only when a single judge of that court has remanded a.prisoner that a single justice of the supreme court may overrule his decision upon the return of a new writ issued by him; but when the order of remand has been made by the district court of appeal the new writ, if issued at all, must be made returnable before the supreme court in Bank, where alone rests an authority superior to that of the district court of appeal, and where alone its decisions can with any propriety be corrected or reviewed.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hutton & Williams, Henry T. Gage, and W. I. Foley, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. F. Aram, Coburn & Collier, and Lewis A. Hilborn, for Appellant.</p>

<p>Negligence—Bailroads—Injury to Passenger—Degree of Care Bequired of Carrier—Instructions.—In an action against a railway company to recover damages for personal injuries to a passenger resulting from a collision caused by the defendant’s alleged negligence, an instruction as to the degree of care required of the defendant, to the efEect that in order to absolve itself from liability it must establish “that such collision was caused by or resulted from some inevitable casualty or unavoidable accident or cause beyond human care or foresight to prevent,” is the equivalent, and no more than the equivalent, of the rule enacted in section 2100 of the Civil Code, requiring a carrier of passengers to use the “utmost care and diligence for their safe carriage,” and is a correct statement as to the degree of care required of the carrier.</p> <p>Id.—Burden of -Proof of Negligence—Preponderance of Evidence— Instructions.-—In such action, where the defendant simply denied its negligence, an instruction that in order to absolve itself from liability it must show by a preponderance of evidence that it was not negligent, or that it used the utmost care and diligence, is erroneous. Although in such an action a prima faeie ease is made by the plaintiff by proof of the happening of the accident, the burden of proof still remains with him throughout the entire trial to show, upon the entire evidence, and by a preponderance thereof, - the fact of the defendant's negligence. Such instruction shifts the burden of proof to the defendant, whereas, in order to be absolved from liability, it has only to make such a showing of the exercise of the care required of it by the law as to leave the evidence upon the issue of negligence in such condition that the jury .cannot conclude that the negligence has been satisfactorily established by a preponderance of the evidence.</p> <p>Id.—Tables of Life Expectancy—Judicial Notice—Evidence.—Courts take judicial notice of the standard tables of life expectancy, and such a table which is satisfactory to the trial court is admissible in evidence without preliminary proof as to its authenticity and reliability.</p> <p>Id.—Damages for Death of Wife and Mother—Instructions.—In an action to recover damages for the death of a woman, brought by her surviving husband and children, the admission of evidence as to the life expectancy of the plaintiffs, as shown by such a table, is without prejudice, provided the jury is clearly instructed that it cannot in any event award damages to either of them for any period extending beyond the probable time of the life of the deceased.</p> <p>Id.—Duty to Use Best Safety Appliances—Instructions.—In this action an instruction that “Railroad companies engaged in the transportation of passengers for reward are bound to use the best precautions, in practical use, to secure the safety of their passengers,” while perhaps too broad a statement as an abstract proposition, was not prejudicially erroneous, in view of the evidence given upon the trial.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Richards & Carrier, and James L. Crittenden, for Appellant.</p>

<p>Divorce—Adumeby—Findings—Evidence.—In an action by a wife against her husband for a divorce on the ground of his adultery, the evidence is held sufficient, when weighed in accordance with the probabilities, to warrant the trial court in finding the fact of adultery.</p>

<p>APPEAL from a decree of the Superior Court of Sacramento County distributing the estate of a deceased person. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Note and Mortgage—Single Transaction—Non-Payment op Interest —Option to Consider Principal Due.—A note and mortgage given to secure its payment, which are parts of one transaction, are to be read together, and the payee of the note may avail himself of a provision in the mortgage making the principal of the note due for non-payment of interest at the payee's option, although the note contains no such provision.</p> <p>Id.—Notice op Exercise of Option—Commencement of Action—Tender of Payment of Interest.—The holder of the note and mortgage containing such optional provision, .before commencing an action of foreclosure, need not give any formal notice to the defaulting maker of his election to declare the principal due for non-payment of interest, the commencement of the action itself being notice of the exercise of the option. The principal sum, however, does not become due ipso facto upon default in the payment of interest, nor until the option is exercised; and if after such default, and before the option has been in fact exercised, the maker of the note pays or offers to pay the overdue interest, the right to exercise the option is lost.</p> <p>Id.—Tender and Payment before Exercise of Option.—If, before the holder of the note exercised his option to declare the principal due for non-payment of interest, the maker of the note tenders the interest due and deposits the same in bank and notifies the holder thereof, as provided by section 1500 of the Civil Code, such acts constitute a payment; and the tender of payment without the deposit in bank is equally effective to destroy the right of the holder to declare the principal due. After such payment or tender the holder of the note cannot rely upon the commencement of a foreclosure suit as an exercise of his option, nor can a statement, made after the tender, that the holder had exercised his option of considering both principal and interest due have any effect.</p> <p>Id.—How Option Is Exercised—Overt Act Necessary.—A holder of such note cannot be held to have exercised such option until he manifests his election by some outward act. A mere mental deter-initiation, or a direction to Ms attorney to proceed to foreclose, not communicated to the maker, is not sufficient.</p> <p>Id.—Pleading—Allegation oe Election—Evidence—Findings.—In an action to foreclose such a note and mortgage, an allegation in the complaint, in the present tense, that the plaintiff “elects to declare the whole of the principal and interest thereon now due and payable,” must be construed to refer to an election made at the time of the complaint, and evidence of a prior election and a finding thereon were outside of the issues and should not be considered.</p>

<p>MOTION to dismiss an appeal from an order of the Superior Court of the County of Los Angeles. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Trespassing Cattle—Evidence—Findings — Damages.—■ In an action to recover damages from the defendant, claimed to have been sustained by the plaintiff on account of the defendant wrongfully and negligently allowing its cattle to trespass upon certain grain and pasture lands owned and leased by him, the evidence is reviewed and held to sustain the finding of negligence on the part of the defendant in caring for its cattle, and also the finding of the amount of damages suffered by the plaintiff.</p> <p>Id.—Measure of Damages—Acquiescence by Defendant in Theory of Plaintiff.'—Where such action was tried on the assumption, acquiesced in by both sides, that a certain rule for the measure of damages was correct, and evidence in support thereof was introduced without objection, the defendant, against whom judgment was rendered, cannot subsequently be permitted to question the correctness of the rule so adopted or to raise the question of the sufficiency of the evidence to sustain the finding of damages when tested by some other and different rule or the competency of the evidence introduced.</p>

<p>APPLICATION for a Writ of Mandate directed.to the City Clerk of the City of Oakland.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Pleading—Piling Amended Answer as of Course.—Under section 472 of the Code of Civil Procedure, a defendant has not an absolute right to file an amended answer at any time before trial. An amended answer “as of course” cannot be filed after a demurrer to the original answer has been disposed of, or after the time within which the plaintiff might have demurred, but did not, has expired.</p> <p>Id.—Discretion in Allowing Amendment — Appeal. — Whether the court should allow an amended answer to be filed rests in its sound discretion, and its order refusing it can only be reversed when the record shows an apparent abuse of such discretion.</p> <p>Id.—Amendment Necessitating Continuance of Trial.—A party is entitled to have a cause tried at the date for which it is set, unless some satisfactory reason is presented for its postponement. An application for leave to amend a pleading, which, if granted, will work a continuance of a trial, without any showing why the application was not made earlier, is sufficient ground for refusing to allow the amendment, especially when it appears that the facts set up in the amended answer were known to the defendant at a sufficiently earlier date to have permitted an amendment to the answer without the necessity of a continuance of the trial.</p> <p>Charter Party—Breaking tjp of Voyage—Evidence.—In an action to recover for the use and hire by the defendant from the plaintiff of a certain boat for a particular voyage, it is held, upon a review of the evidence, that the plaintiff did not break up the voyage or retake the boat without the consent of the defendant before the voyage was completed, and that the evidence showed that the voyage was completed under the contract as found by the court.</p>

<p>Water-Bights—Bipxrian Owners—Prescription—Evidence. — In an action between riparian owners to determine their respective rights to the waters of a natural stream, the evidence is held sufficient to support the findings to the effect that the défendant had by prescription only acquired the right to divert one miner’s inch of said waters, and that of the remaining waters the plaintiffs were entitled to the entire flow for twenty days out of every twenty-one days.</p>

<p>Justice’s Court—Appeal—Sufficiency of Undertaking.—Under section 978 of the Code of Civil Procedure, providing that an undertaking on appeal from a justice’s court must be “in the sum of one hundred dollars for the payment of the costs on appeal; or, if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money,” an undertaking on appeal from a money judgment, in an adequate amount, and conditioned that the appellant “will pay the amount of the said judgment so appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against it in the action in the superior court,” is sufficient. The expression “all costs,” as used in such undertaking, includes the costs on appeal.</p>

<p>■Criminal Law—Murder—Corpus Delicti—Evidence.—In a prosecution for murder, it is held, upon a review of the evidence, that there was sufficient proof of the corpus delicti without aid from the defendant’s admissions.</p> <p>Id.—Accidental Killinc—Burden of Proof—Instructions. — On a trial for murder in which the defense was that the killing was accidental, it is proper for the court in its instructions to read to the jury section 1105 of the Penal Code, as follows: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” ' The phrase “the commission of the homicide by the defendant being proved,” is properly construed as an expression of a condition or event upon which the succeeding part of the instruction would become applicable, and, especially in view of the other instructions, could not have been interpreted by the jury as an intimation by the court that the commission of the homicide by the defendant had been proved.</p> <p>Id.—Justification of Killing—Mitigation—Instruction.—The applicability of such an instruction is not limited to eases where the justification offered is that the killing was in self-defense. It applies in any ease where the defendant offers evidence in mitigation of the offense,—that is, to reduce the degree of the crime; or in justification, as that it was in self-defense or in the lawful execution of a death sentence; or in excuse, as that it occurred by accident and not design.</p> <p>Id.—Distrust of Witness.—The giving of an instruction that “a witness willfully false in a material part of his testimony is to be distrusted in others” is not cause for reversal.</p> <p>Id.—Conviction of Murder of First Degree—Penalty of Imprisonment for Life—Retrial—Death Penalty.—Where a defendant charged with murder of the first degree is convicted of murder of the first degree with the penalty of imprisonment for life, such judgment of conviction is not a bar to the infliction of the death penalty upon a retrial of the same charge granted upon the defendant’s motion.</p> <p>Id.—Photograph of Place of Homicide—Evidence.—On a trial for murder, a photograph of the room in which the homicide was committed, taken six days after its occurrence, is admissible in evidence as a diagram or illustration of the articles shown therein, upon sufficient proof being made that at the time the photograph was taken such articles were in substantially the same position as they were in when the body of the deceased was first found in the room.</p> <p>Id.—Absence of Witness from State—Admission of Deposition.’— The evidence is held sufficient to show that a witness, whose deposition taken at the preliminary examination of the defendant was admitted at the trial, was absent from the state at the time of tho trial and could not be produced as a witness.</p> <p>Id.—Preliminary Proof—Order of Proof.—Any error in the reading of such deposition before the proper foundation therefor has been entirely laid is cured by the subsequent proof of the absence of the witness from the state.</p>

<p>Pbimary Elections—Section 2% of Article II of Constitution— Tests fob Electobs.—Section 2% of article II of the constitution,, which empowers the legislature to provide for and regulate primary-elections, and to prescribe tests of the rights of. electors to vote at primary elections by direct enactment, or to delegate to the governing bodies of the respective parties the power to prescribe such tests,, authorizes it to partly exercise and partly delegate such power.</p> <p>Id.—Sections 1366a and 1361a of Political Code not Conflicting.— Section 1366a of the Political Code, providing that in all places-where the Primary Election Law is in force each elector at the-time of registering or of transferring registration, shall declare-the name of the political party with which he intends to affiliate-at the ensuing primary election or elections, that such name shall' then be stated in his affidavit of registration, and that he shall not be allowed to vote on behalf of any other party, or for delegates; to the convention of any other party, by virtue of that registration,, unless before the close of registration he announces and has recorded' a change of his party allegiance, and if he refuses to so give file-name of his party, that fact is to be stated in the record, and he shall not be permitted to vote at all at the ensuing primary, unless-before the close of registration he declares his party allegiance by affidavit; and section 1361a of the same code, empowering the several political parties to prescribe additional tests, if they desire to-do so, for those who offer to vote for delegates to their respective conventions, are not in conflict, and neither is unconstitutional by reason of the enactment of the other.</p> <p>Id.—Section 1366a of Political Code Is Constitutional.—Section 1366a of the Political Code is not unconstitutional for imposing an additional qualification to those prescribed for electors by section 1 of article II. of the constitution; nor is it unreasonable because with the close of registration the elector loses his right to change his party allegiance in consequence of a change in his political convictions, and is precluded from taking part in the election of delegates to the convention of the party with which on the day of the election his more matured opinions would impel him to east in his lot; nor because a political party entitled to participate in the primary election might determine not to hold a convention or nominate candidates, and by so doing might deprive a member of that party of the right to vote at the ensuing primary. ..</p> <p>Id.—Construction of Constitutional Provisions. :—Section 2% of article II of the constitution must be construed in the light of the evils it was designed to remedy and the .course of legislation and judicial decisions prior' to its adoption, and the power by it conferred upon the legislature to prescribe tests of the right to vote at primary elections should not be narrowed by construction.</p> <p>Id.—Uniformity of Operation of Section—Saving Clause in Favor of Registered Electors.—The fact that section 1366a of the Political Code contains a saving clause in favor of all electors who were registered before its enactment, permitting them to vote at the ensuing primary election notwithstanding their affidavits of registration contain no declaration of affiliation with any political party, does not render the section unconstitutional for lack of uniformity in its operation, in that it creates classes and imposes more onerous conditions upon one class than another.</p>

<p>Note and Mortgage—Single Transaction.—A mortgage executed co-temp oraneously with a promissory note, to secure which it was given, forms part of the same transaction, and must be read in connection with the note, and the whole construed as one contract, in order to arrive at the true meaning of each.</p> <p>Trustee — Principal and Agent — Contract Binding Trustee Personally.—Where an agent makes'a contract really on behalf of Ms principal, but wMch purports to be Ms promise and to bind himself alone, and he has not in fact any authority to make that particular contract for his principal, the general rule is that the agent will be personally bound by the contract, notwithstanding his lack of personal interest in the consideration. He will be conclusively presumed to have intended to bind himself. This rule is particularly applicable where a trustee, in dealing with trust property, makes some personal promise to pay money in furtherance of the trust which he has no authority to make as trustee. In regard to such contracts, he is a principal, and must be presumed to have intended to act for himself alone.</p> <p>Id. — Power to Mortgage — Note for Borrowed Money — Personal Liability of Trustee.—A trustee, having only the power to mortgage the trust property, who borrows money for the benefit of the trust, and executes a note therefor, signed by himself, with the added word “Trustee,” containing the recital, “I promise to pay,” etc., and to secure such note executes a mortgage on the trust property in the ordinary common-law form of a conveyance as security for the debt, containing personal covenants on his part to pay the indebtedness, and no stipulation relieving himself from personal liability, becomes personally liable by such contract, notwithstand ing the mortgage, in that part of it operating as a conveyance, contained a reference to the fact that the mortgagor was conveying as trustee.</p> <p>Id.—Power to Mortgage Does not Authorize Trustee to Borrow so as to Bind Beneficiaries.—Power conferred on a trustee to mortgage the trust property does not include the power to make a personal promise on behalf of the beneficiaries of the trust or the trustor that they, or either of them, should pay money borrowed by the trustee. It only carried power to pledge, convey, or hypothecate the property as security for money. There is nothing in section 2267 of the Civil Code, defining the authority of a trustee with respect to. the trust property, contrary to this conclusion.</p> <p>Id.—Power of Sale in Mortgage—Default in Interest—Acceleration of Date of Maturity—Statute of Limitations.—A note which matured three years after its date was secured by a mortgage which provided that the sum borrowed should be paid at that time, with interest thereon, payable semi-annually. The mortgage also contained a provision that upon default in the performance of such conditions the holder of the note might sell the mortgaged premises at public auction, and out of the proceeds of the sale should “be entitled to retain all sums then secured by the deed (whether then or thereafter payable), including all costs,” etc. Default having been made in the payment of interest before the date of the maturity of the note, the holder sold the premises under the power contained in the mortgage. Held, that the exercise of such power of sale did not have the effect to accelerate the time of maturity of any balance on the debt remaining unpaid after the proceeds of the sale were applied thereon; that the application of the proceeds was a mere payment upon the debt, authorized to be made before its maturity; and that any unpaid balance did not mature until the date fixed by the note and mortgage for its maturity, and that until such time the statute of limitations did not commence to rim against the balance.</p>

<p>Tax-Deed—Imperfect Assessment—Injunction—Tender of Amount of Tax.—The execution of a tax-deed based on an imperfect assessment will not be restrained at the suit of one' who does not offer to do equity by paying such tax as is in morals and justice chargeable against him.</p> <p>Id.—Assessment of Mortgage—Interest as Entirety—Assessment to Mortgagor by Sections.—Where the assessment of a large tract of mortgaged lands properly made against the mortgagor by government subdivisions, as required by sections 3628 and 3650 of the Political Code, shows a valuation of the property by such legal subdivisions, and a deduction, on account of the mortgage, from the valuation of each parcel, the mortgagee, whose interest in such lands was assessed in a lump sum, aggregating the total of such deductions, without any apportionment among the sections composing the mortgaged property, cannot maintain an action to restrain the execution of a tax-deed based upon the assessment of the mortgage interest, without tender of the amount of the tax assessed thereon.</p> <p>Id.—Tender of Tax on Particular Sections.—If the mortgagee had desired to free any specific sections of the land from the lien of the tax, it could have offered to pay the tax properly chargeable to those sections. Such offer, even if refused, would have put the mortgagee in a position to ask and receive the aid of a court of equity.. If it never had the intention or desire to pay the tax as to any part of the land less than the whole, the failure to assess the mortgage interest by subdivisions did not affect its obligation to pay the entire tax.</p>

<p>Criminal Law — Instructions Already Given.—Where the instructions given by the court of its own motion embraced the same principles of law contained in the instructions asked by the defendant, the refusal to give the instructions requested by the defendant is without prejudice.</p> <p>Id.—Murder—Evidence oe Conversation in Absence oe Defendant. ■—In a prosecution for murder, a conversation had in the absence of the defendant between his brother and the deceased, which the defendant, in the quarrel leading up to the homicide, refers to and • demands to have repeated to him, is admissible in evidence as throwing light upon the purpose and motive of the defendant in making the demand.</p> <p>Id.—Question Apparently Proper—Motion to Strike Out Answer :—Waiver oe Objection.—Where there is nothing on the face of a question to indicate that an answer to it would be incompetent, immaterial, and irrelevant, the overruling of an objection to it on that ground was proper; and if the question only appeared to be vulnerable to such objections when the answer was given, it was incumbent on the adverse party to move to strike out the answer, and if he failed so to do, no error can be predicated on the overruling of the objection.</p> <p>Id.—Conspiracy—Declarations oe Conspirator When Admissible.— The rule allowing statements or declarations of one conspirator to be given in evidence as against his co-conspirator requires not only that the conspiracy be pending and its object not consummated when the statements or declarations are made, but also that such statements, in order to be admissible, must be in aid and furtherance of the common purpose or design of the conspiracy. Declarations showing past acts, or expressing merely the opinion or desire of the conspirator making them, are not binding upon any one except himself or those in whose presence they are made.</p> <p>Id.—Declarations not in Furtherance oe Conspiracy.—On a trial for murder, claimed to have been perpetrated in pursuance of a conspiracy between the defendant and another, a declaration of the co-conspirator, made after he had fled from the scene of the killing, and while the conflict between the deceased and the defendant was practically on, to the effect that he knew that the deceased was “going to get it,” is inadmissible, as it was not made at a time when he was aiding in furthering the object of the conspiracy, nor was it in any manner in aid or furtherance thereof.</p> <p>Id.—Sele-Deeense—Relative Strength oe Dependant and Deceased —Evidence oe Physician.—On a trial for murder, where the defense is self-defense, it is always competent to show the relative physical strength of the deceased and the defendant, as bearing upon the question whether the defendant acted under a reasonable apprehension of the infliction upon him by the deceased of great bodily injury or death at the time he tilled him; and as an aid in determining that question, the defendant is entitled to introduce in evidence the testimony of a physician to show that he had him under his medical treatment for a particular disease for two and a half years prior to the homicide, and the effect that disease had in impairing his strength. Error in rejecting the testimony of such physician is not rendered harmless by the fact that the defendant himself testified on the subject of the disease.</p>

<p>Contract—Rescission—Consent—Misrepresentation Must Be Mate- • rial.—Under sections 1565 to 1568 of the Civil Code, a contract cannot be rescinded when it appears that consent would have been given and the contract entered into notwithstanding the duress, menace, fraud, undue influence, or mistake relied upon. A misrepresentation as the basis of rescission must be material; but it can be material only when it is of such a character that if it had not been made the contract would not have been entered into.</p> <p>Id.—Settlement oe Judgment—Immaterial Concealment oe Property.—A settlement of a judgment of three thousand five hundred dollars by the payment of one hundred dollars will not be rescinded on account of the alleged fraudulent representations of the judgment debtor that he was absolutely insolvent and had no property at the time of the settlement, where it appears that at that time . he only had property worth four hundred dollars, and was otherwise indebted to the extent of fifteen thousand dollars. Under such circumstances the concealment by the judgment debtor of his ownership of such property cannot be regarded as material to the settlement.</p>

The instruction referred to in paragraph 5 of the opinion was in the following language: “A witness who testifies falsely as to one fact in giving his testimony is to be distrusted in other parts of his testimony. If you find that a witness has deliberately testified falsely in one part of his testimony in this case, you have the right to reject the whole of the testimony of that witness which is not shown by other evidence in the case to be true.

The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, and Hunsaker & Britt, for Appellant. The town of Wilmington, immediately upon the passage of the act of February 20, 1872, became duly incorporated.

<p>Taxes Paid under Protest—Los Angeles City—Charter Provisions —Demand for Repayment—Pleading.—Under sections 208, 209, 216, and 222 of the freeholders’ charter of the city of Los Angeles, it is a necessary prerequisite to the maintenance of an action against the city for the recovery of taxes paid under protest that a previous demand therefor, as provided by such sections, be presented to the city council; and a complaint to recover such taxes which fails to allege the presentation of a demand is insufficient, in failing to state a cause of action.</p> <p>Id.—Section 3819 of Political Code.—Conceding that section 3819 of the Political Code, relating to the recovery by suit of taxes paid under protest, although in terms limited to the matter of state and county taxes, is made applicable to the city of Los Angeles by section 46 of its charter, still it must be construed subject to the provisions of the charter requiring the presentation of claims and demands against the city.</p> <p>Id.—City Ordinance for Recovery of Taxes Paid.—An ordinance of the city, containing provisions practically the same as section 3819 of the Political Code for the recovery of taxes paid under protest, if it must be construed as authorizing suit for the recovery of such taxes without any prior presentation of a claim to the city council, would be void because in conflict with the charter provisions.</p> <p>Id.—City not Trustee for Taxes Paid under Protest—Right of Taxpayer.—Money paid to the city as taxes under protest becomes the property of the city, without being subject to any trust whatever, and an action to recover the same is in no sense an action to enforce a trust, in which a demand would be unnecessary. The taxpayers’ right against the city after payment is only such as is conferred either by section 3819 of the Political Code or by the ordinance provision authorizing an action for the recovery of the amount of taxes paid upon a void assessment.</p> <p>Id.—Application for Reduction of Assessment.—The making by a taxpayer of an application for the reduction of an assessment to the city council sitting as a board of 'equalization, prior to the. payment of the taxes under protest, is not the presentation of a demand for the repayment of such taxes within the meaning of the charter requirements.</p> <p>Id.—Allowance of Claim for Taxes Paid under Protest.-—The city council had jurisdiction to allow a claim for taxes paid under protest if properly presented, although the board of equalization had several months before refused to reduce the assessment. The fact that a reduction of the assessment was refused does not conclusively establish that the city would not have allowed the claim, or render the presentation of a demand therefor unnecessary, on the ground that a demand would have been useless.</p>

<p>Criminal Law—Appeal—Refusing to Postpone Trial.—An order denying the defendant’s motion for a postponement of the trial is reviewable on appeal from the judgment of conviction, and is not the subject of a separate appeal.</p> <p>Id.—Bill of Exceptions.—Under sections 1173 and 1174 of the Penal Code, to obtain a review of an order denying a continuance in a criminal case, it is necessary to incorporate the motion, evidence, and ruling in a bill of exceptions.</p> <p>Id,—Cure of Error in Refusing Continuance—Absence of Witnesses. —In a prosecution for murder any error in refusing a motion of the defendant for a continuance, in order to allow him to secure the attendance of material witnesses in support of Ms defense of insanity, is cured by the subsequent attendance of such witnesses at the trial.</p> <p>Id.—Depositions of Non-Resident Alienists.—It is not an abuse of discretion or a denial of right to refuse to postpone a criminal trial in the courts of California until the depositions of nonresident alienists based upon hypothetical questions can be obtained in support of the defense of insanity.</p> <p>Id.—Local Prejudice—Securing Jury.—The refusal to postpone a trial for murder on the ground that local feeling was inflamed against the prisoner is not error, when the absence of any such feeling is established by the fact that a jury was filled from the panel in attendance on the day the trial began.</p> <p>Id.—Insanity—Question for Jury.—It is for the jury to determine, under the instructions of the court, whether or not the defendant was insane at the time of the homicide, when the evidence on that issue is conflicting.</p> <p>Id.—Instructions—Weight of Evidence.—It must be presumed that a jury always understand that it is their duty to give to any evidence the weight to which it seems entitled, and the refusal of the judge to make that comment on any particular item or line of evidence cannot be supposed to prejudice the party offering it.</p> <p>Id.—Instruction Already Given.—The refusal to give a requested instruction, the substance of which has already been given, is not error. .</p> <p>Id.—Instruction as to Opinion Evidence.—Where the defense of insanity is interposed to a charge of murder, it is not error to refuse to instruct the jury that “The abstract opinion of any witness, medical or of any other profession, is not of any importance. ... No judicial tribunal would be justified in deciding for or against the legal responsibility of one charged with insanity upon the mere opinion of witnesses, however numerous or respectable.” There is no rule of law such as that embodied in the instruction.</p> <p>Id.—Irresistible Impulse—Murder.—Where the defense of insanity is interposed to a charge of murder, the court may instruct the jury as to the law of insanity fully and with all its special limitations and qualifications, and in that connection may point out that “irresistible impulse” to do an act known by the perpetrator to be wrong does not relieve him of its legal consequences.</p> <p>Id.—Limiting Argument—New Trial—Arraignment for Sentence.— Limiting counsel for the defendant to one hour for the argument of the motion for a new trial in this ease, and refusing to postpone the arraignment for sentence, was not an abuse of discretion.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Water Developed by Tunnels—Findings—Evidence.—In an action to restrain the diversion of certain waters of which the plaintiff claimed to be the owner, and for damages, the evidence, being conflicting, is held sufficient to sustain the findings to the effect that the waters developed by the tunnels of the defendants, and thence diverted by them, were not waters to which the plaintiff had any right either as an appropriator or as a riparian owner.</p> <p>Id.—Retrial—Issue of Facts—Sufficiency of Evidence.—On a retrial questions of fact raised by the pleadings are again at issue, and the sufficiency of the evidence to sustain the findings thereon is to "be determined from a consideration of the evidence then introduced.</p> <p>Id.—Tunnel on Land of Another—Ownership of Water—Trespass. —The fact that the defendants’ tunnel had its commencement on, and partly ran through, the land of the plaintiff until it reached the source of water supply on the defendants’ lands, and that the waters there developed were conducted by the defendants through such tunnel, does not make plaintiff the owner of the waters developed on the defendants’ lands, notwithstanding the defendants may have been trespassers in so constructing and maintaining the tunnel.</p> <p>Id.—Diversion of Water for Use Elsewhere—Want of Damage.— While the waters of a stream or percolating waters cannot be taken away from the lands on which they flow, or from lands upon which they are found, for use elsewhere, if the result of such taking would be to injuriously affect adjoining property-owners, still if no such results would follow by the taking and use elsewhere of the waters, no limitations should be placed upon the right of one developing them as to their use.</p>

<p>Mortgage—Findings—Evidence.—In an action to foreclose a mortgage, it is held, upon a review of the evidence, that the findings to the effect that at the time of the execution of the mortgage the mortgagor was the owner of the premises, that the appellant was a subsequent purchaser with knowledge of its existence, and as to the amount of the mortgage indebtedness, were sufficiently sustained.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate to the Auditor of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Presumption of Consideration — Evidence — Finding.—A presumption of a consideration for a note and mortgage arises from the writing itself. Such presumption is itself evidence which is sufficient to support a finding of consideration, notwithstanding evidence of the mortgagors to the contrary.</p> <p>Id.—Renewal of Note and Mortgage—Acknowledgment of Debt— Attorney in Fact.—An instrument in writing, executed by the authorized attorney in fact of the maker of a promissory note and mortgage, securing the same, certifying and declaring that such mortgage, “together with the promissory note and debt secured thereby [which were particularly described], is hereby renewed and extended for the further term of two years from date,” constitutes a renewal of the note and mortgage within the meaning of section 2922 of the Civil Code. Such instrument is also an acknowledgment of the debt, and in either aspect it operated to start a new period of limitation thereon.</p> <p>Id.—General Power of Attorney—Authority to Renew Note and Mortgage.—A general power of attorney, in the form in common use in this state, authorizing the attorney to do certain specifically enumerated acts, which included almost every conceivable mode of dealing with real and personal, tangible and intangible property, “and to make, do and transact all and every kind of business of what nature and kind soever, and also ... to sign, seal, execute, deliver and acknowledge such deeds, covenants, indentures, agreements, mortgages, hypothecations, bottomries, charter parties, bills of lading, bills, bonds, notes, receipts, evidences of debt, releases and satisfaction of mortgage, judgment and other debts, and such other instruments in writing of whatever kind and nature as may be necessary or proper in the premises,” is sufficient to authorize the attorney, on behalf of his principal, to execute a renewal of a note and mortgage made by the principal.</p> <p>Id.—Renewal by Payee after Transfer.—The original payee of a note and mortgage, after he has made a transfer thereof, is not debarred as the attorney in fact of the maker from" executing a renewal of the note and mortgage on behalf of the maker, although the effect of such renewal might result in his release as indorser or guarantor.</p> <p>Id.—Renewal Does not Bind Mere Agent.—A renewal of a promissory note and mortgage made by the duly authorized attorney in fact of the maker, and solely in his capacity as agent, only binds the . principal, and not the agent.</p> <p>Id.—Recital in Mortgage of Extension of Note.—A recital in a mortgage that the time of payment of a note secured thereby has been extended to a certain day beyond the date specified in the note for its maturity is as between the parties to the mortgage conclusively presumed to be true; and in promising to pay such note “according to its terms and conditions,” the mortgagor must be taken to have referred to the terms and conditions, not merely as they appeared on the face of the note itself, but with such modifications as were recited in the mortgage.</p> <p>Id.—Defense of Payment—Striking Out Counterclaim.—In an action to foreclose a mortgage in which the answer affirmatively alleged payment of the mortgaged indebtedness in full, it is without prejudice to the defendants to strike out counterclaims setting up part payments on such indebtedness.</p> <p>Id.—Cross-Demands between Mortgagor and Mortgagee—Simple Contract Debt.'—A simple contract debt due from a mortgagee to the mortgagor is not such a cross-demand, within the meaning of section 440 of the Code of Civil Procedure, as to have it operate as a compensation pro tanto of the mortgage indebtedness. Such indebtednesses cannot be mutually compensated under that section.</p> <p>Id.—Counterclaims—Statute of Limitations—Claim against Estate —Striking Out Pleadings.—In an action to foreclose a mortgage it is not prejudicial error to strike out cross-demands against the estate of a deceased person which were pleaded as counterclaims, but which were ineffectual as such because they were barred by the statute of limitations and had not been presented to the personal representative of the deceased,</p>

<p>Action for Bescission—Fraudulent Conspiracy—Accounting—Inability of Defendant to Bestore—Offer before Suit not Bequired.—In an action which is primarily in equity for the rescission of a sale and conveyance of property to trustees for the corporation, in which a fraudulent conspiracy and misrepresentations of the owner and his agent and the trustees are alleged, and in which it is sought to cancel the stock and bonds held by such agent, and to cancel notes given upon the purchase, and which necessarily involves an accounting to determine the amount due to the plaintiffs, and ik which it appears that the former owner had put it out of his power to make restitution, and that the rights of all the parties can be fully protected by the decree, the ease appearing is an exceptional one, in which a prior offer of the plaintiffs to make restitution would be a vain thing and is not required. It is sufficient that plaintiffs offer to do equity.</p> <p>Id.-—Absence op Undue Delay—Former Suit in Federal Court—Notice op Rescission.—The delay of three months in bringing the present suit is fully excused by evidence that a former suit in the federal court was instituted by plaintiffs as a corporation and a resident of Great Britain, seeking the same relief, which was dismissed only because it appeared that one of the defendants, the former owner of the land,_ supposed to be a citizen of California, was in fact shown to be a subject of the kingdom of Italy. If any notice of rescission before the present suit was required, such former suit operated as such notice.</p> <p>Id.-—Pleading—Distinction between Amended and Supplemental Complaint.—An amended complaint and a supplemental complaint, though both incorporated into one document, in which the supplemental complaint is distinguished only by being contained in separately but consecutively numbered paragraphs, are nevertheless to be considered as separate pleadings. The complaint, whether original or amended, can properly speak only of things which occurred before or concurrently with the commencement of the action. But the office of the supplemental complaint is to bring to notice things occurring after the commencement of the action, and which do or may affect the rights asserted and the relief asked in the aetion°as originally instituted.</p> <p>Id.—Joinder op Trustees as Parties — Fraudulent Conspiracy—Accounting.—Where the trustees held the title to the property at the beginning of the action, they were properly joined as parties defendant, and they do not become improper parties because pending the action they parted with their interest, especially where they were charged with complicity in the alleged frauds and in the conspiracy by which it was carried out. They are also proper parties to any investigation of their expenditures and claims as trustees.</p> <p>Id.—Joinder op English Stockholder with Corporation Dbpraudbd. —The joinder of an English stockholder with the corporation defrauded was not under the rules of equity a fatal misjoinder where he was one of the parties defrauded and holds bonds of the corporation which are a lien upon the property, and has a large share of its stock, which bonds and stock may be necessary to be transferred to the former owner upon the equitable rescission asked, and which he offers to deliver up for that purpose.</p> <p>Id.—Power op Court op Equity.—A court of equity may mold its decree to suit the exigencies of the ease, and may determine the ultimate rights of the parties on either side, as between themselves or the opposing party, and render a decree accordingly.</p> <p>Id.—Causes of Action not Misjoinder.—The complaint states but one cause of action, and there is no misjoinder of causes.</p> <p>Id.—Improper Orders Striking Out—Sums Expended—Diligence.— The court improperly struck from the complaint sums expended on account of the transaction, including interest paid to the former owner, expenses of operating the ranch, expenses of agents in transacting business, and moneys expended in good faith, while plaintiffs believed the false representations made to be true, and before discovery of their falsity, and also improperly struck out facts showing diligence in'promptly prosecuting the action.</p> <p>Id.—Deposition of Witness before Answer Filed—Cost-Bill.—The deposition of a witness may be taken in an action at any time after the service of the summons or the appearance of the defendant, and the cost thereof may be properly included in the cost-bill of the party taking it. Such deposition may be taken by either party to the action.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Common Carriers—Railroad—Agreement as to Value of Property Shipped—Limiting Liability.—A contract between a railroad company and a shipper, reasonable and voluntarily entered into by the parties, the primary purpose of which was, as the rates of transportation charged by the railroad were measured by the valuation of the property shipped, to fix an agreed valuation on such property as a basis upon which freight rates should be charged and paid, on condition that in ease .of loss the railroad’s liability should be measured by such agreed valuation, is to be construed as an agreement fixing the valuation of the property shipped, and not as a contract limiting the liability of the railroad; and in case of loss through the gross negligence of the railroad, its liability cannot exceed the valuation so fixed.</p> <p>Id.—Loss through Gross Negligence.—Section 2175 of the Civil Code, providing that a common carrier cannot be exonerated by any agreement made in anticipation thereof from liability for its gross negligence, does not prohibit such a contract, nor prevent it from having such effect.</p> <p>Id.—Reasonableness of Contract.—In determining whether such a contract is fair or reasonable, no consideration can be taken of the fact whether the agreed value of the property reasonably approximated its real value. In the present case, the contract under consideration is held to have been freely and fairly made, and to be reasonable.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William F. Herrin, P. F. Dunne, and W. S. Spencer, for Appellants.</p>

<p>District Agricultural Association—Public Corporation.—A district agricultural association, organized under the act of April 15, 1880, for the purposes specified therein, is a public agency of the state, within its exclusive management and control, and is charged with the performance of a part of the functions of the state government. Such an association is a public corporation.</p> <p>Id.—Property Exempt prom Execution—Assent op State—Liability to Suit.—The property of such an association, used to carry on the purposes for which it was formed, is so far public property that it cannot be taken in execution and sold thereon to enforce payment of a judgment, unless the state has manifested its assent thereto by a law permitting it to be done. No such assent has been given by the state. The fact that the statute of April 15, 1880, provides that such an association may sue and be sued does not imply such assent.</p> <p>Id.—Setting Aside Judgment—• Statute op Limitations — Fraud.— Under subdivision 4 of section 338 of the Code of Civil Procedure, an action to set aside a judgment against such an association, on the ground that • it was obtained through the fraudulent failure of the district board of agriculture to plead certain facts that would have been a good defense to the action in which the judgment was rendered, must be commenced within three years, but the period of limitation does not begin to run until after the discovery of the facts constituting the fraud.</p> <p>lo.—Pleading Discovert of Fraud—Insufficient Averments.—An allegation in the complaint to set aside the judgment, that the failure to set up the so-ealled defense in the action in which the judgment was rendered “was not discovered hy the plaintiff, or the said relators, or any of them, until within two months next before the commencement of this action,” is not sufficient to excuse the delay in bringing the action after three years from the rendition of the judgment, when the complaint does not allege any reason for the failure to make the discovery, nor state that any diligence had' been exercised, nor show that if reasonable diligence had been exercised, it would not have been discovered sooner.</p>